Wednesday, May 5, 2004
Zündel Hearings: Quash That
numerous witnesses don't want to testify;
what has happened behind the scenes to
make them change their minds?
TORONTO. Tuesday, May 4, 2004.
In my last CAFEGRAM
entitled "Watch for Fireworks in the
Zündel Case", I promised you
excitement at the Zündel hearings
before Mr. Justice Pierre Blais in
Toronto. We had plenty of excitement and
tension. Indeed, as I approached the
courtroom, I learned that the drama and
skullduggery had already begun.
Judge Lauren Marshall, who had
confirmed orally her willingness to
testify for Ernst Zündel, was
out. Her testimony, as Mr.
Zündel's lawyer in the mid-1980s, is
crucial. She can explain the incredible
haste with which the usually snail-like
immigration department moved to commence
deportation proceedings against Mr.
Zündel after his "false news"
It was clear then, and it should be
clear now, that Mr. Zündel is the
victim of political persecution. He's a
political problem for Canada's
minority-run Liberal regime, not a threat
to national security.
In a written statement, Mr.
Zündel's lead defence attorney,
Peter Lindsay, said:
"My Lord, there was been a
significant change in circumstances in
this matter. I had indicated to Your
Lordship on Thursday (April 29) that
Regional Senior Justice Marshall would
testify this morning. I based that on
two direct personal discussions between
myself and Justice Marshall in which
her Honour had specifically and
unequivocally agreed to testify in this
matter and we had fully discussed the
subjects to be covered in her
testimony. I had also served a subpoena
on Her Honour, but that subpoena was
only served after Her Honour had
already told me personally that she was
willing to testify and would testify in
this matter. Yesterday morning I spoke
to Her Honour by telephone and
confirmed arrangements to meet her this
morning at this courthouse prior to her
testimony. At about 4:00 p.m.
yesterday, I received a telephone call
from her new lawyer, Mr. Stern, who was
suddenly acting on behalf of Her
Honour. Now, through Mr. Stern, Her
Honour has, despite her earlier
agreement to testify, brought a motion
before Your Lordship, in relation to
testifying in this matter, and Her
Honour is not present in Court this
Why had Judge Marshall suddenly
developed a case of cold feet and was
seeking to quash the subpoena? The
idealists suggest that the lady had simply
changed her mind. The cynics counter that
"the big boys" got to her. In her earlier
days, as Mr. Zündel's lawyer, she'd
received terrifying phone calls
threatening the lives of her children if
she continued to act for Canada's most
JUDGE Marshall was not the only person
who'd developed a case of shyness. Just
before court opened, Mr. Lindsay informed
me of the weird antics of John
Farrell, the former thief whom CSIS
had employed in the mid-1990s to
surreptitiously open the mail of
dissidents, including Ernst Zündel.
It was Farrell's information that largely
formed the basis of Andrew
Mitrovica's book about CSIS --
Covert Entry: Spies, Lies and Crimes
Inside Canada's Secret Service.
Farrell, the former thief and mail
snoop, is now a teacher of religion at a
West Toronto Catholic High School.
[Yes, I know, not since Mary Magdalen
...] Peter Lindsay and his law clerk
went to his school to serve the elusive
Mr. Farrell with a subpoena. They talked
to his principal. The principal advised
them that Mr. Farrell was away that day.
Out in the parking lot, they encountered a
teacher and told them their business.
"Oh," he said, "I just saw Mr. Farrell in
the library." Using this helpful
information, they re-entered the school
and, indeed, found Farrell in deep
discussion with the less-than-truthful
principal of the Catholic High School. The
principal charged at Mr. Lindsay and
assaulted him, permitting Mr. Farrell to
flee the premises. Mr. Lindsay called the
police. The principal stoutly denied ever
assaulting Mr. Lindsay.
As a former teacher who was twice
served with legal papers at school, I find
this incident extraordinary. Most school
administrators have a very acute sense of
deference to authority and the law and
would usually be only too happy to
accommodate a process server.
Blais seemed to accept defeat on what
appeared to be the plan to rush the
case through by tomorrow. Last week,
with hearings lasting until after 8:00
p.m., every effort had been made to
rush Mr. Zündel to judgement and,
likely, deportation. Mr. Blais is now
talking of arranging more court dates
as far ahead as possibly December of
this year. He is also talking of Mr.
Zündel's next mandatory detention
review in late July.
Court proceedings were dominated by
submissions from a growing list of people
who don't want to testify. The Crown side
of the court is becoming over-crowded. It
looked like the old days of the
Zündel Internet case before the
Canadian Human Rights Tribunal, with guest
appearances by lawyers Marvin Kurz
and Judy Chan, acting for Frank
Dimant of the League
for Human Rights of B'nai Brith and
Keith Landy of the Canadian
Jewish Congress, respectively. Their
normally publicity seeking clients had
developed a sudden case of shyness when
subpoenaed to testify in the Zündel
case. They were also joined by Paul
Stern, representing Madam Justice
Marshall and, late for the second day in a
row, a Mr. Rogers, acting on behalf
of author Andrew Mitrovica who also
wanted no part of testifying.
Crown Attorney Donald MacIntosh
led off arguing that the subpoenas against
Dimant, Landy and Mitrovica should be
"Mr. Lindsay advanced the
proposition that the security
certificate was signed by the Minister
of Citizenship and Immigration and the
Solicitor-General because of pressure
by the Canadian Jewish Congress, B'nai
Brith and others. There isn't a
scintilla of evidence. This is a
fishing expedition. Evidence of intent
or knowledge of the minister is not
relevant. It's not what Mr. Dimant said
to a minister as to whether the
certificate is reasonable."
Last week, Mr. Justice Blais was so
brutal to lead defence counsel Peter
Lindsay that he, at one point, apologized.
Today, his mood had changed and he
repeatedly challenged the Crown lawyers
and the lawyers seeking to quash the
"Why can you not go to the question of
the information that is provided to the
ministers by various sources?" he asked
Mr. MacIntosh. "Can we not question the
evidence provided to the decision
MacIntosh continued: "My friend
supposes because various esteemed members
of the Jewish community made
"And met with the ministers. I think
there were meetings," Mr. Justice Blais
interrupted him. The Act is clear. Section
78.j says: 'The judge may receive into
evidence anything he thinks may be
relevant, even if it is not admissible in
a court of law.' The ministers were
provided with hearsay evidence. We don't
know whether witnesses provided evidence
to the ministers."
On another occasion, Judge Blais
interrupted Mr. MacIntosh who was mocking
Mr. Lindsay's concern about actions of
ministers of immigration in the 1980s.
"People in glass houses," Mr. Justice
Blais remarked, reminding him that the
Crown and CSIS had brought in newspaper
clippings that were 23 years old as part
of their case against the German
Mr. MacIntosh, becoming increasingly
testy and strident, doggedly pushed the
notion that B'nai Brith and the Canadian
Jewish Congress merely exercised their
free speech rights to make representations
to cabinet ministers, just as anybody else
might do. Readers who wait six months to
get even an acknowledgement of a letter to
a cabinet minister might differ with Mr.
MacIntosh. "B'nai Brith has no more
special access to the minister than any
other organization making urgent
He, then, went
on to advance the amazing view that
having to testify about their lobbying
might intimidate groups like the CJC
and B'nai Brith. "If individuals who
made representations to ministers are
subpoenaed, it will inhibit the
expression of their views."
In July, Mr. Justice Blais had
dismissed Covert Entry as a
"novel." He now seemed to be taking it and
the allegations that CSIS knew the May,
1995 pipe bomb was coming to Mr.
Zündel very seriously. "We have some
pieces that are missing. There is still
opportunity for both sides to provide
information on these matters, especially
the strong allegation that CSIS knew of
the pipe bomb sent to Mr.
In the afternoon, both Judy Chan and
Marvin Kurz argued that their clients
shouldn't be subpoenaed. While the CJC
posts pictures of prominent CJC officers
grinning in meeting with cabinet
ministers, Miss Chan invited the court to
conclude that these meetings were nothing
special. "His meeting with the minister
doesn't prove Mr. Landy has any relevant
evidence to give. This is a fishing
expedition. It is an inappropriate use of
a subpoena and it could be used to
embarrass or harass my clients."
The ever voluble Mr. Kurz took the
better part of an hour to urge Judge Blais
to quash the subpoena as Mr. Dimant's
testifying would only aid Mr. Zündel
is establishing that there is
Jewish conspiracy" against him:
"Frank Dimant has no evidence to offer
which is relevant in this case,
particularly as to whether Mr. Zündel
is a security risk." Kurz set up the straw
man of an international Jewish conspiracy,
which Mr. Lindsay had never mentioned, and
then proceeded to flail away at it. "The
argument of an international Jewish
conspiracy is an abuse of process," he
theory is that the government and
Jewish groups worked together to get
rid of Mr. Zündel. I didn't hear
the word 'international'," Judge Blais
interjected. "Whether Jewish groups
intervened in the process could be
relevant," he added.
"There's a great deal of evidence that
Mr. Dimant and B'nai Brith and the
Canadian Jewish Congress and Mr.
[Bernie] Farber are very
opposed to Mr. Zündel and his views.
There's nothing secret there," Mr. Kurz
persisted. "Both organizations have
intervened in Mr. Zündel's court
cases. Mr. Zündel would have you
believe there's something improper about
that. Mr. Lindsay would have you believe
that Jews exercising their Charter rights
are doing something wrong."
If the arguments of MacIntosh, Chan and
Kurz limped, the submissions of Mr.
Rogers, representing Andrew Mitrovica,
were positively lame.
"Mr. Mitrovica has been subpoenaed
simply because he's the author of a book
in pursuit of his craft as an
investigative journalist. He's not an
expert. He does not want to appear in any
sense to be supporting Mr. Zündel. He
has no material evidence. The book speaks
An incredulous Judge Blais interrupted:
"Even though he made strong allegations in
the book? He made all those allegations
about CSIS without material evidence? He
made strong allegations that CSIS was
involved in sending a pipe bomb to Mr.
Mr. Rogers answered: "He is merely a
conduit." He pronounced it "con-doo-it."
"He is merely reporting what others told
Again Judge Blais interrupted: "The
kind of allegations he made, how
substantiated were they?"
Rogers responded: "He wrote a book for
the world to see. He had no involvement in
the pipe bomb. He does not have any direct
"So who does know?" Mr. Justice Blais
demanded. "Mr. Mitrovica knows if
information is corroborated. ... We're
talking of allegations of a serious crime
-- the issue of someone letting a pipe
bomb go to Mr. Zündel and did
nothing. In the book, Mr. Mitrovica
concludes: 'CSIS is riddled by waste,
incompetence, nepotism and law breaking.'
Mr. Mitrovica seems to be quoting CSIS
employees in violation of Sec. 18 of the
CSIS Act. Making public that kind of
information is against the law. He cares
more about selling books."
"The book speaks for itself," Mr.
Rogers repeated. "Mr. Mitrovica's evidence
is not relevant."
"We don't know that. We haven't heard
from Mr. Mitrovica," Judge Blais
The hearing continues
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