Here is the first installment of the three-day bail hearing
(December 10-12) to get Ernst released from the clutches of his political
TORONTO. December 10, 2003.
FEDS GET ANOTHER SECRET HEARING TO DELAY ZUNDEL'S
Mr. Justice Pierre Blais has granted a request from
federal cabinet ministers for yet another secret hearing in the detention
or bail hearing of jailed German-born publisher Ernst Zundel. Returning
from the afternoon break, Blais announced: "The Registrar informs me
that the Ministers have requested a private session for new evidence.
Therefore, I will not reserve" judgement this afternoon.
The 38 free speech supporters who packed the small seventh
floor courtroom in support of Mr. Zundel were stunned. The afternoon
session had been taken up with Crown Attorney Donald MacIntosh's arguments
against granting Mr. Zundel bail after nearly 10 months in solitary
confinement. Perhaps, chastened by Doug Christie's strong submissions in
the morning session that he recuse himself for an apprehension of bias
having been Solicitor-General in charge of CSIS, Blais repeatedly
interrupted MacIntosh and challenged and dismissed many of his arguments.
It seemed that Mr. Justice Blais was on the verge of
releasing the dissident pacifist on bail. Shortly before the mid-afternoon
break, several observers saw Lorne Rudner of the Canadian Jewish Congress
leave the room, apparently to make a phone call. He returned about 15
minutes later. After the break, the atmosphere had changed and grown
distinctly frosty toward the jailed publisher. The earliest Mr. Blais can
hold the secret hearings is next week. If he chooses to release any
information, he may solicit further submissions from counsel before he
decides, thus making Mr. Zundel's release before Christmas all but
If Blais's pre-break questioning had seemed to favour Mr.
Zundel, his demeanour after the break again raised the spectre of holding
Canada's most famous political prisoner hostage for the shutting down or
curtailing of the Zundelsite.
Repeating that he was still "exploring options"
about granting bail, but "I'm not there yet," Mr. Justice Blais
pointed out that people are often restricted from doing things they have a
legal right to do -- such as drinking or frequenting certain places -- as
conditions of release. He seemed to hint that Mr. Zundel might be
restricted from publishing his views on the Internet or somehow have to
remove items ordered removed by the January, 2002 order of the Canadian
Human Rights Tribunal. Mr. Zundel has repeatedly pointed out that Ingrid
Rimland, not he, owns, edits and controls the Zundelsite.
"Never before in the history of national security
certificates have Internet communications been considered a factor,"
Douglas H. Christie, Mr. Zundel's lead counsel countered.
"The only justification for incarceration is being a
threat to national security," Mr. Christie continued. "The
Zundelsite is not a threat to national security and should not be held as
a bail condition. The Canadian Human Rights Tribunal has adequate means to
enforce its order."
"It's very dangerous to hold a man's freedom hostage
to a website," Mr. Christie warned. "It's dangerous to detain
people on national security grounds for communicating ideas that are legal
in other countries. To do so is to put us on the road to national thought
control," the Victoria-based civil libertarian insisted.
"There must be objective, real suspicion, not
paranoid worries or political feelings, of a substantive threat to
national security," to keep a man in jail, Mr. Christie argued.
"We must give some value to the liberty of the individual, if we are
not to become a police state."
"The Crown must prove that Mr. Zundel is a real
danger to national security, not just a nuisance or political
dissident," Mr. Christie insisted. Referring to Crown Attorney Donald
MacIntosh, Mr. Christie observed: "The greatest vehemence of my
colleague is reserved for 'hate'. My colleague throws this term around.
However, Mr. Zundel has never been charged or convicted of promoting
Earlier Crown Attorney MacIntosh had insisted: "If
Mr. Zundel were released, he'd continue to associate with Mr. McAleer and
other purveyors of hate. All these associations give us to believe that
Mr. Zundel is a threat to national security."
Knowledgeable observers of Canada's populist movement
report that Mr. McAleer has been politically inactive for about eight
Mr. MacIntosh repeatedly called Mr. Zundel
"untruthful" and accused him of lying.
In the morning, Mr. Christie spoke forcefully to his
motion that Mr. Justice Blais recuse himself. As Solicitor-General in
1989, Pierre Blais issued a directive that no human source should be used
to surveil legitimate political parties. However, apparently disobeying
him, the Canadian Security Intelligence Agency (CSIS) had agent Grant
Bristow spy on Reform Party leader Preston Manning.
"It was your directive not to do something (spy on
Preston Manning) that they did. The Solicitor-General-CSIS relationship is
one of officially sanctioned secrecy which we cannot penetrate," Mr.
Christie said. CSIS agent Grant Bristow's role in the Heritage Front
"was not just to spy but to incite," Mr. Christie explained.
"Mr. Zundel's contention will be that his [Bristow's] role was to
incite violence. CSIS was used for political purposes. A directive was
initiated by Your Lordship that such spying not be done, but CSIS did. Now
CSIS appears before you and it would be hard not to agree with them."
"Our defence comes head to head with the credibility
of CSIS," Mr. Christie argued. "We're saying that, as
Solicitor-General, you must have known what was going on. CSIS wasn't
acting in a rogue capacity and wasn't operating without ministerial
"We have reason to believe that a bomb Mr. Zundel was
sent [in 1995] was delivered with the foreknowledge of CSIS. When events
take place like this, the integrity of the Parliamentary system is
involved," Mr. Christie charged.
Mr. Justice Blais reserved on his decision, saying that he
would try to announce his conclusions next week.
In his arguments against granting bail for Mr. Zundel.
Donald MacIntosh said: "I rely on a large and liberal interpretation
to the term 'a danger to the security of Canada.' Canada's international
relations are an important part of Canada's security. Certain activities
could give rise to deleterious effects on our international relations.
Canada has an international obligation to take steps to see that hate
propaganda is not disseminated," he said.
Intervening at that point, Mr. Justice Blais said:
"Playing devil's advocate, it's no secret that these international
conventions are not part of the legal framework of Canada" and are,
therefore, not binding.
The hearing continues Thursday.