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 Bias Motion against Justice Blais


DES-2-03

IN THE MATTER of a Certificate signed pursuant to subsection 77(1) of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act")

AND IN THE MATTER of the referral of that certificate to the Federal Court
of Canada pursuant to subsection 77(1), sections 78 and 80 of the Act;



IN RELATION TO:



ERNST ZUNDEL






WRITTEN SUBMISSIONS 






PART I - STATEMENT OF FACTS:

1. On May 1, 2003, the Minister of Citizenship and Immigration and the
Solicitor General of Canada signed a certificate stating that Ernst Zundel
is inadmissible to Canada under sections 33 and 34(1), (c), (d), (e) and
(f) of the Immigration and Refugee Protection Act ("IRPA"). These
provisions allege terrorism, being a danger to the security of Canada,
engaging in acts of violence that would or might endanger the lives or
safety of persons in Canada, and being a member of an organization that
there are reasonable grounds to believe engages, has engaged or will engage
in such acts.

Zundel Affidavit, para. 2; Motion Record, p. 5

2. Pursuant to section 82(1) of the IRPA, the warrant for Zundel's arrest
and detention was issued on May 1, 2003. On May 9, 2003, Zundel was taken
to Court from Toronto West Detention Centre for a detention review hearing
before Mr. Justice Pierre Blais of the Federal Court of Canada. Mr. Justice
Blais informed the hearing at that time that he had commenced the review of
the reasons for his continued detention on Friday, May 2, 2003 and that he
had examined the information provided by the two Ministers in the absence
of Zundel and his counsel which was provided by the Canadian Security
Intelligence Service ("CSIS"). The detention review hearing continued on
the following dates: May 9, May 16, July 28, July 29, July 30, September
23, September 24, November 6 and November 7, 2003. The hearing on the
certificate itself is yet to commence.

Zundel Affidavit, paras. 3-6; Motion Record, p. 6

3. In October, Zundel was informed by his solicitor, Barbara Kulaszka, that
she had learned that Mr. Justice Blais had been the Solicitor General of
Canada around 1989 but that she had been unable to find the exact dates.
Zundel instructed his counsel to bring a motion before Mr. Justice Blais to
recuse himself from the case if he was the same person who had been
Solicitor General. On the resumption of hearings on November 6, 2003,
Zundel's counsel, Douglas Christie, asked the Court if he had sat as the
Solicitor General of Canada. Mr. Justice Blais confirmed that he had held
the position of Solicitor General of Canada in 1989. Christie then brought
an oral motion for the judge to recuse himself from the case on the grounds
of reasonable apprehension of bias. During the lunch break, Zundel's
counsel discovered that Mr. Justice Blais was mentioned in the
Parliamentary Debates on the Heritage Front affair and that one of the
directions he had made to CSIS as Solicitor General regarding the use of
human sources was a major issue in that controversy. Zundel's counsel and
counsel for the Ministers agreed that the hearing should be adjourned until
the motion could be dealt with as it involved a serious matter of
principle. Mr. Justice Blais refused the adjournment. He ordered that the
motion be brought in writing, to be heard on December 10, 2003.

Zundel Affidavit, para. 8-10; Motion Record, pp. 6-7

4. The case against Zundel by CSIS is admittedly not based on acts of
violence by Zundel but on his associations and ideas. In the para. 3 of the
statement summarizing the evidence pursuant to section 78(h) of the IRPA it
states that: 

"Zundel is an influential individual or patriarch in the White Supremacist
Movement ("Movement"), has supported violence in the Movement and has
associations with and exercises influence over violent and/or influential
individuals and organizations in the Movement in Canada and
internationally. Zundel seeks to destroy the multicultural fabric and
underpinnings of Canadian society. To comprehend the threat Zundel
represents to the security of Canada, his activities must be assessed in
the context of the hostile white supremacist environment in which he
predominates." 

5. These are the same allegations made against Zundel by CSIS in
citizenship proceedings in the 1990s. In 1993, after winning his case in
the Supreme Court of Canada, Zundel applied for Canadian citizenship. He
heard nothing concerning the application until 1994 when an article
appeared in the Toronto Sun written by Christie Blatchford, entitled
"Citizen Zundel? No Way". In the article, Ms. Blatchford quoted a senior
official with the federal Citizenship and Immigration department saying
that his application "was flawless" but that "the government is going to
try very hard to deny it." 

Zundel Affidavit, para. 12; Motion Record, p. 8; 
Exhibit "A"; Motion Record, p. 19

6. Zundel's citizenship application was suspended in 1995 on the grounds
that there were reasonable grounds to believe that he was a threat to the
national security of Canada. The grounds given in that certificate, issued
under the Citizenship Act by the Minister of Citizenship, are the same as
the grounds relied upon by the Ministers to have Zundel declared
inadmissible to Canada under the certificate issued under the IRPA. The
evidence relied upon is almost identical. 

Zundel Affidavit, para. 13; Motion Record, p. 8
Exhibit "B" - Statement of Circumstances; Motion Record, p. 21-29

7. A large part of the "White Supremacist Movement" that CSIS alleges
Zundel influences and directs is the Heritage Front organization. These
persons include Wolfgang Droege, Marc Lemire, George Burdi, Christopher
Newhook, and Eric Fischer. The Heritage Front is a pivotal aspect of the
case against Zundel and covers the years 1989 to 1994 in particular. Mr.
Justice Blais was Solicitor General of Canada for 1989.

Zundel Affidvit, para. 14, 15, 16; Motion Record, p. 9
CSIS Statement of Evidence, para. 12

8. In 1994, it was publicly revealed that CSIS had a human source within
the Heritage Front, Grant Bristow, and that he in fact had helped form and
finance the group. The evidence was that Bristow himself had initiated many
of the acts of violence alleged against the Heritage Front or influenced
them. What became known as the "Heritage Front Affair" became a huge
scandal in the press. The Security Intelligence Review Committee ("SIRC")
was forced to commence an investigation and to make a report to the
Solicitor General of Canada. This report was filed in December of 1994. 

Zundel Affidavit, para. 17; Motion Record, p. 9
Exhibit "C" - "The Heritage Front Affair" Report ("HF Report"); Motion
Record, pp. 31-83

9. Zundel was included in the report with allegations that he had
instructed Grant Bristow to obtain the names and addresses of Jewish
leaders, with the clear implication being that Zundel was going to do them
some harm. Throughout the report he was called a hate propagandist although
he had never been convicted of inciting hatred. 

Zundel Affidavit, para. 18; Motion Record, p. 9
Exhibit "C"- HF Report; Motion Record, pp. 53,54,56,57,58,63,64,65,66

10. The "Heritage Front Affair Report" stated that "after five years of
investigating the extreme right , CSIS concluded in the 1990-91 TARC
submission, that the 'investigations since 1985 have documented the
violence and petty criminal activity by skinheads and others but nothing
that could be considered a threat to the security of Canada.' CSIS
continued to investigate the extent to which the extreme-right constitutes
a threat, by 'focusing on the leadership.'" 

Zundel Affidavit, para. 19; Motion Record, p. 10
Exhibit "C" - HF Report, Motion Record, p. 32, 33

11. Mr. Justice Pierre Blais was one of those Solicitors General mentioned
in the HF Report, who had scrutinized the targeting of individuals in the
"white supremacist movement" and which, it is reasonable to believe,
included Zundel since he was included in the HF Report numerous times. The
HF Report stated: "The targeting of the white supremacist movement, since
the establishment of CSIS, has been reviewed continuously since 1985. The
individual targets have changed, and the scope of the investigations has
narrowed and then recently expanded again. Over the years, a considerable
number of people in positions of authority, both in government and the
judiciary, have known of and approved the Service's operations in this
area. The list of those who have scrutinized the targeting of individuals
in the white supremacist movement since the creation of CSIS includes:
seven Solicitors General; four Inspectors General; twelve members of the
Security Intelligence Review Committee; and four Directors of CSIS. In
addition, judges of the Federal Court have granted warrant powers to the
Service to investigate this area." 

Zundel Affidavit, para. 20; Motion Record, p. 10
Exhibit "C" - HF Report, Motion Record, p. 32-33

12. Zundel believes his mail has been opened by CSIS for two decades. Mail
disappeared, documents he was expecting did not come, or the mail was
excessively late, sometimes by weeks. His belief is confirmed by the HF
Report and by former CSIS agent John Farrell's expose of CSIS in Covert
Entry, published in 2002, where he detailed his work in intercepting and
opening Zundel's mail.

Zundel Affidavit, para. 21; Motion Record, p. 11
Exhibit "C", Motion Record, pp. 32, 33, 34, 35, 36, 69-82
Exhibit "G", Motion Record, pp. 180-186

13. While Solicitor General, Pierre Blais issued in October of 1989 a
direction to CSIS regarding the use of human sources. In the HF Report,
SIRC stated that these directions were "seriously deficient" which should
be "re-examined" given what had happened with Grant Bristow and the
Heritage Front. (Exhibit "C" - HF Report, Motion Record, pp. 80-81) SIRC
concluded with respect to Blais' directions: 

"All human source activities are governed by the limits of the CSIS Act and
direction issued by the Solicitor General under section 6(2) of the CSIS
Act. It is also governed by CSIS internal direction in the CSIS Operational
Manual. In their directions to sources, CSIS officers are bound by the
limits of sections 2 and 12 of the CSIS Act. Under the CSIS Act, the
Minister can provide written direction to the Service." 

Zundel Affidavit, Exhibit "C"; Motion Record, p. 80

14. Mr. Justice Blais refused Zundel's counsel's request to order
production of this direction by the Department of the Solicitor General.

Zundel Affidavit, para. 23; Motion Record, p. 11
Exhibit "E" - Motion Record, pp. 110-113

15. Zundel believes that Grant Bristow will be one of the secret witnesses
against him in the hearing on the certificate, which has not yet commenced. 

Zundel Affidavit, para. 24; Motion Record, p. 12

16. Zundel's position in these proceedings is that it was the CSIS agent,
Grant Bristow, who was the true agent of influence within the Heritage
Front to incite violence and mayhem. He also financed the Heritage Front.
The exposure of Bristow as a CSIS agent created a public relations crisis
for CSIS and later a legal one when Zundel was able to successfully argue
before the Federal Court of Canada - Trial Division, that SIRC was biased
against him and that it should not proceed with the hearing under the
Citizenship Act. The government was forced to introduce and pass
legislation amending the Citizenship Act to provide another legal avenue to
deny Zundel Canadian citizenship. The Federal Court of Appeal later
overturned the Trial Division and held that SIRC was entitled to proceed
with the investigation. Zundel withdrew his application for citizenship at
that point.

Zundel Affidavit, para. 25; Motion Record, p. 12

17. It is Zundel's position that that CSIS should never have targeted him
for surveillance and that such surveillance was illegal. He believes it is
reasonable for him to believe that one of the Solicitors General who
scrutinized and approved of this targeting was Mr. Justice Blais in 1989
according to the HF Report and the testimony of Paul E. Kennedy, Senior
Assistant Deputy Solicitor General, who described how much personal control
is exercised by a Solicitor General over such targeting.

Zundel Affidavit, para. 21, 27, 28; Motion Record, pp. 11-13
Exhibit "D"- Motion Record, pp. 85-108

18. Zundel believes that he cannot obtain a fair hearing in these
proceedings where the judge hearing the case has been a Solicitor General
himself, having direct control over CSIS and directing it in a time period
when CSIS was targeting him, using a human source named Grant Bristow to
infiltrate the right-wing, and warrants to intercept his mail, if not
telephone calls, which must have been approved by the Solicitor General.

Zundel Affidavit, para. 29; Motion Record, p. 13

19. It was during Mr. Justice Blais' tenure as Solicitor General that the
Reform Party of Canada was targeted for surveillance in 1989. The
dissenting opinion of the Reform Party of Canada in the Report of the
Standing Committee on Justice details the fact that Preston Manning was
targeted commencing in 1989. It created great controversy and a public
outcry when this illegal surveillance was revealed in 1994. SIRC admitted
in the HF Report in its Foreword, that "�the allegations against CSIS were
so serious that the Security Intelligence 'system' established by
Parliament in 1984 was in danger of losing the public's trust." 

Zundel Affidavit, para. 31; Motion Record, p. 13

20. In the dissenting opinion filed by the Reform Party of Canada in the
Report of the Standing Committee on Justice and Legal Affairs, it stated: 

"While SIRC denied any wrongdoing by Bristow or CSIS, they failed to
address a very important issue - the entire operation was conducted in
violation of a 1989 Ministerial Direction. On October 30, 1989, then
Solicitor General Pierre Blais issued the following Ministerial Direction
on 'CSIS Use of Human Sources' to the Director of CSIS. The Direction
states in part: 'that special care is required in regard to investigations
which impact on, or which appear to impact on, the most sensitive
institutions of our society. I am primarily thinking in this regard of
institutions in the academic, political, religious, media or trade union
fields�I am writing that you personally, or a Deputy Director designated by
you in writing, approve the use by the Service of confidential sources in
such investigation."

Zundel Affidavit, Exhibit "F", p. 45; Motion Record, p. 157

21. Zundel states that there is a reasonable and unanswered question in his
mind whether Mr. Justice Blais did or did not approve Bristow's activities
against the right-wing in Canada. 

Zundel Affidavit, para. 33; Motion Record, p. 14

22. Zundel has entered excerpts from the book Covert Entry: Spies, Lies and
Crimes Inside Canada's Secret Service by Andrew Mitrovica into evidence in
the proceeding. The book is an expose of CSIS by former agent John Farrell
who discloses that Zundel's mail was being opened for years by CSIS, that
CSIS was aware that a bomb was being sent to him through the mails in 1995
in a parcel, and that CSIS did not intercept the bomb or notify police.
Zundel believes the book shows that CSIS knowingly allowed the bomb to be
delivered. Zundel received this bomb and because he was suspicious of it,
took it to Metro Police. They detonated the bomb and informed Zundel that
it was the most powerful bomb the force had ever detonated and that it
would have killed the person who opened it and anyone within several metres
of the bomb. No one has ever been charged with this attempted murder. 

Zundel Affidavit, para. 34; Motion Record, p. 14
Exhibit "G" - Covert Entry; Motion Record, pp. 180-186

23. During cross-examination of Zundel where Crown counsel began
questioning him on Covert Entry, Mr. Justice Blais aggressively interrupted
and intervened in the cross-examination, challenging Zundel on the book and
what he was alleging about it. Mr. Justice Blais twice termed the book "a
novel." 

Zundel Affidavit, para. 35; Motion Record, p. 15
Exhibit "H" - Transcript; Motion Record, p. 188-196

24. Zundel states that the book Covert Entry is vital evidence to his
defence of allegations of terrorism in that it shows that CSIS has no good
faith towards him , that it in fact is malicious and may in fact show
criminal intent to have him murdered. 

Zundel Affidavit, para. 36; Motion Record, p. 15

25. Zundel also intends to raise as a defence to these charges of terrorism
the fact that CSIS was targeting him illegally at least prior to 1993, when
he made his application for Canadian citizenship. He has no record of
violence in Canada or counseling violence or abetting violence.

Zundel Affidavit, para. 37; Motion Record, p. 15

26. The Director of CSIS, Ward Elcock gave testimony in September of this
year, 2003, that he would not call Zundel a terrorist.. Mr. Elcock's
testimony is as follows: 

Mr. Joe Clark: I don't want to quarrel with words, but I noted that there
was a slight difference between what is written on page 6 and what you
said, in that you talked about Sikh terrorists and secular Arab terrorists,
and then you said "a right-wing extremist". I wonder if that was advertent
or significant. The right-wing extremist, I presume, is Mr. Zundel.
Mr. Ward Elcock: That's correct. 
Mr. Joe Clark: Was that an exceptional circumstance? Do you anticipate
there will be other actions taken on the basis of extremism? And how do you
define extremism?
Mr. Ward Elcock: One could easily characterize some of the other
individuals as terrorists or extremists, whichever one you wanted to
choose. "Extremist" can cover a fairly wide variety of sins. Mr. Zundel is
certainly a widely known and a very serious extremist on the right-wing
side. I'm not sure I would go so far as to call him a terrorist, but an
extremist he certainly is.

Zundel Affidavit, Exhibit "I" - Evidence of Proceedings of Parliamentary
Subcommittee on National Security; Motion Record, pp. 198-200



PART II - ISSUE

27. Does a reasonable apprehension of bias exist with respect to Mr.
Justice Pierre Blais such that he should recuse himself from this case?


PART III - WRITTEN SUBMISSIONS

28. The law with respect to reasonable apprehension of bias was recently
summarized by Pinard J. of the Federal Court of Canada - Trial Division in
Trepanier v. Cogeco Radio-Television Inc., [2002] F.C.J. No. 1432. He stated:

"Impartiality was described in R. v. S (R.D.), [1997] 3 S.C.R. 484, as 'a
state of mind in which the adjudicator is disinterested in the outcome, and
is open to persuasion by the evidence and submissions. In contrast, bias
denotes a state of mind that is in some way predisposed to a particular
result, or that is closed with regard to particular issues.'

29. In addition, Mr. Justice Cory specified at page 529 of that case:

'In demonstrating partiality, it is therefore not enough to show that a
particular juror has certain beliefs, opinions or even biases. It must be
demonstrated that those beliefs, opinions or biases prevent the juror (or,
I would add, any other decision-maker) from setting aside any
preconceptions and coming to a decision on the basis of the evidence:
Parks, supra, at pp. 336-337.'

30. Cory J. added, at page 531, that the test for a real likelihood of bias
contains a two-fold objective element. The person considering the alleged
bias must be reasonable, and the apprehension of bias itself must be
reasonable in all the circumstances of the case.

31. Lastly, with respect to the reasonable person, Cory J. stated at page 531:

'�Further the reasonable person must be an informed person, with knowledge
of all the relevant circumstances, including the traditions of integrity
and impartiality that form a part of the background and apprised also of
the fact that impartiality is one of the duties the judges swear to
uphold.': R. v. Elrick, [1983] O.J. No. 515 (H.C.), at para. 14�'

32. Again, with respect to the test to be applied where an apprehension of
bias is alleged, Mr. Justice DeGrandpre, dissenting, in Committee for
Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369,
explained at pages 394 and 395:

'�the apprehension of bias must be a reasonable one, held by reasonable and
right minded persons, applying themselves to the question and obtaining
thereon the required information�[T]hat test is 'what would an informed
person, viewing the matter realistically and practically - and having
thought the matter through - conclude�'

I can see no real difference between the expressions found in the decided
cases, be they 'reasonable apprehension of bias,' 'reasonable suspicion of
bias', or 'real likelihood of bias'. The grounds for this apprehension
must, however, be substantial and I entirely agree with the Federal Court
of Appeal which refused to accept the suggestion that the test be related
to the 'very sensitive or scrupulous conscience.'"

33. In the case at bar, Mr. Justice Blais held the position of Solicitor
General of Canada in 1989. This fact alone is enough to raise a reasonable
apprehension of bias in the mind of a reasonable person. One of the
Ministers who signed the certificate against Zundel is the Solicitor
General and the evidence is supplied by CSIS, the secret service over which
Mr. Justice Blais was the responsible minister in 1989.

34. But, even further, Mr. Justice Blais was a Solicitor General during the
time period that is at issue in these proceedings against Zundel which span
the period from about 1981 to the present day. This raises a direct
conflict of interest between Mr. Justice Blais and the defence positions of
Zundel in these proceedings.

35. The Solicitor General has the responsibility of directing and
supervising the operations of CSIS and is accountable to Parliament for its
operations and activities. The entire scheme of the CSIS Act rests on
ministerial responsibility and accountability for its operations in serving
its purpose under section 12:
12. The Service shall collect, by investigation or otherwise, to the extent
that it is strictly necessary, and analyse and retain information and
intelligence respecting activities that may on reasonable grounds be
suspected of constituting threats to the security of Canada and, in
relation thereto, shall report to and advise the Government of Canada.
1984, c. 21, s. 12.
36. The management of the Service is, under sections 6 and 7 of the CSIS
Act, 1984, c. 21, under the direction of the Solicitor General of Canada.
Section 6 provides:

"6. (1) The Director, under the direction of the Minister, has the control
and management of the Service and all matters connected therewith.
(2) In providing the direction referred to in subsection (1), the Minister
may issue to the Director written directions with respect to the Service
and a copy of any such direction shall, forthwith after it is issued, be
given to the Review Committee.
(3) Directions issued by the Minister under subsection (2) shall be deemed
not to be statutory instruments for the purposes of the Statutory
Instruments Act.

37. Section 7 provides that the Deputy Minister shall advise the Minister
with respect to directions issued under subsection (2) or that should, in
the opinion of the Deputy Minister, be issued under that subsection.
38. Under section 20 of the Act, if the Director is of the opinion that an
employee may, on a particular occasion, have acted unlawfully in the
purported performance of the duties and functions of the Service under this
Act, the Director shall cause to be submitted a report in respect thereof
to the Minister. The Minister is required to send a copy of any such report
to the Attorney General of Canada and to SIRC.
39. Where mail or telephones or other interceptions of information are to
occur, CSIS is required to apply for judicial warrants pursuant to section
21 of the CSIS Act. Under subsection 21(1), the Solicitor General must be
informed and approve of the applications for warrants:
21. (1) Where the Director or any employee designated by the Minister for
the purpose believes, on reasonable grounds, that a warrant under this
section is required to enable the Service to investigate a threat to the
security of Canada or to perform its duties and functions under section 16,
the Director or employee may, after having obtained the approval of the
Minister, make an application in accordance with subsection (2) to a judge
for a warrant under this section.
40. Under section 21, a judge has the power to issue a warrant authorizing
CSIS agents to enter any place or open or obtain access to any thing, to
search for, remove or return, or examine, take extracts from or make copies
of or record in any other manner the information, record, document or
thing; or to install, maintain or remove any thing.
41. Applications for renewals of warrants can only be made with the
approval of the Solicitor General under section 22 of the Act.

42. Under section 33, the Director of CSIS is required every twelve months
to submit to the Solicitor General reports with respect to the operational
activities of the Service during that period. A copy of the report is also
given to the Inspector General, who is required to submit to the Solicitor
General a certificate stating the extent to which he is satisfied with the
report and whether any act or thing done by CSIS was not authorized by the
Act or contravened any of the Solicitor General's directions under
subsection 6(2) or involved an unreasonable or unnecessary exercise by CSIS
of any of its powers.

43. The Solicitor General also receives reports pursuant to section 53 and
54 from the Security Intelligence Review Committee annually or upon request
concerning any matter that relates to the performance of its duties and
functions under the Act.

44. In testimony given by Paul Kennedy to the Parliamentary Subcommittee on
National Security of the Standing Committee on Justice, he described the
large oversight over CSIS which the Solicitor General exercises. It is the
Solicitor General who gives "shape and substance" to what constitutes a
threat to the national security of Canada. Kennedy testified:

"The principles of ministerial control and accountability are in fact
central to Canadian parliamentary democracy. But I think if one had
occasion to look back at the debates that occurred at the time, for
instance, and the definitions of threats to the security of Canada, there
was an issue as to the scope of those, and they were intentionally crafted
to be quite vague so they could be kept current in time. For example,
there's no definition of 'espionage' and things of that nature.
Parliamentarians felt the appropriate way at that time would be through
ministerial accountability, that the minister is the one who would give
shape and substance to that through his directives.

The CSIS Act ensures the minister would have full knowledge and power of
direction over the policies, operations, and management of the service. The
ministerial direction is issued in accordance with subsection 6(2) of the
CSIS Act, so it ensures clear policy directions to the service and
ministerial accountability." (Motion Record, p. 87) 

45. In addition, Kennedy testified that judicial warrants for interception
are personally reviewed by the Solicitor General prior to applications
being made to the court. He testified:

"I can assure you every one of them is looked at personally by the
Solicitor General, who receives independent advice when he looks at them."
(Motion Record, p. 103)


46. Zundel will be raising defences which call into question the legality
of the surveillance of CSIS over him during the 1980's and 1990's to at
least 1993 when he applied for citizenship. 

47. These defences raise directly the legality of actions taken by Mr.
Justice Blais during 1989. They also raise the issues of the knowledge and
motivation of CSIS during these same two decades. They raise the issue of
the role of Grant Bristow, a known CSIS agent, in fomenting violence in the
right wing, a man who is almost certainly a secret witness against Zundel
in these hearings.

48. Zundel will raise the defence that CSIS is motivated by the desire to
ensure that the legality of its actions against Zundel will be justified in
a proceeding which labels him a "terrorist."

49. Zundel will argue that the knowledge of CSIS of a bomb being sent to
his house in 1995 will be covered up and whitewashed by a finding that
Zundel himself is a "terrorist" and a threat to Canada's security.

50. The directive which Mr. Justice Blais issued on human sources in 1989
will be a direct issue in the proceedings given the fact that controversy
still surrounds whether the directive was ignored or circumvented or
whether in fact Mr. Justice Blais actually gave approval to Bristow's
placing as a human source against both the Reform Party and the "extreme
right wing."

51. The CSIS Act requires accountability of the Solicitor General. These
court proceedings are one of the ways that Solicitors General may be held
accountable for what they ordered and directed to be done with respect to
the "right wing" in Canada. Mr. Justice Blais was Solicitor General at a
crucial time in the events that are now being put in evidence against
Zundel, namely, the formation of the Heritage Front and the targeting of
CSIS agent Grant Bristow against the "right wing."

52. Mr. Justice Blais cannot sit in judgment on his own actions, taken
while he was Solicitor General. There is no evidence of his actual bias
against Zundel, but these very serious matters raise a reasonable
apprehension of bias in the mind of any reasonable person.

53. CSIS does not have the blanket right to spy on people in Canada because
they do not like their political opinions. CSIS has provided no evidence
whatsoever that Zundel has ever been involved in any type of violence or
counseling of violence in the decades he was in Canada. Zundel is a
law-abiding Canadian who contributed greatly to Canada by having the
criminal "false news" law struck down by the Supreme Court of Canada in 1992.

54. Mr. Justice Blais cannot in good conscience sit in this case since he
himself was most probably a party to decisions being made regarding Zundel
during 1989 or was directly responsible for those decisions as the minister
responsible for CSIS. He should have informed counsel at the beginning of
these proceedings that he had held the position of Solicitor General.

55. In these circumstances, Zundel has a reasonable apprehension of bias on
the part of Mr. Justice Blais given his position as Solicitor General.

56. Further, the comments by Mr. Justice Blais that the book Covert Entry
is a "novel", prior to hearing any evidence on Zundel's part concerning the
background to this book which will be heard during the hearing proper on
the certificate, raises an apprehension of bias on the part of Mr. Justice
Blais given his background as the Solicitor General of Canada in charge of
CSIS. The book charges CSIS with serious matters concerning Zundel, namely,
that it had foreknowledge of the bomb which was sent to him in 1995. That
Mr. Justice Blais would immediately brand the book a "novel" and begin to
aggressively intervene in the questioning of Zundel on the book, raises a
reasonable apprehension that Mr. Justice Blais, as a former Solicitor
General in charge of CSIS, would not be impartial in considering and
judging Zundel's allegations against CSIS.

57. It is submitted that in principle, a former Solicitor General should
never sit on a case calling into question the actions of CSIS regardless of
whether it involves periods of his direct ministerial direction. A
reasonable apprehension of collegial bias exists. The ministerial
responsibility is mutually supportive of CSIS and the minister, and both
have secret knowledge about the other.

58. All the more so where, as in this case, CSIS alleges with secret
supporting evidence brought before their former boss some events against
Zundel which he alleges were highly illegal or immoral on the part of CSIS
and the judge was directly involved as minister in charge of CSIS during
the period when dubious acts of spying and targeting was authorized and
where only CSIS can provide plausible denial of complicity of the minister
(now a judge) in some of its own misdeeds.

59. This case is diametrically different from the situation in Wewaykum
Indian Band v. Canada, [2003] S.C.J. No. 50, where Indian bands alleged
reasonable apprehension of bias against Mr. Justice Ian Binnie on the
grounds that was federal Associate Deputy Minister of Justice in the early
stages of the very proceeding in which he then sat as a judge. It is
submitted that the case falls within the rule of automatic disqualification
as set out in that judgment. The Supreme Court of Canada held:

"This has been described as 'automatic disqualification', and was recently
revisited by the House of Lords in R. v. Bow Street Metropolitan
Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2), [1999] 2 W.L.R.
272. There, the House of Lords dealt with a situation in which Lord Hoffman
had participated in a decision in which Amnesty International was an
intervener, while sitting as a director and chairperson of a charity
closely allied with Amnesty International and sharing its objects. In that
context, it was found that the rule of 'automatic disqualification'
extended to a limited class of non-financial interests, where the judge has
such a relevant interest in the subject matter of the case that he or she
is effectively in the position of a party to the cause. As a result, Lord
Hoffman was disqualified, and the decision of the House of Lords was set
aside, in a judgment that drew much attention around the world."

60. In this case, Mr. Justice Blais has such a relevant interest in the
subject matter of the case, since he was the minister responsible for the
direction and operations of CSIS. Moreover, he held that position during
1989 when crucial events took place regarding the targeting of the "right
wing" by CSIS and the formation of the Heritage Front. His directive
regarding the use of human sources such as Bristow is directly in issue as
is the legality of such surveillance of the "right wing" including Zundel.
Mr. Justice Blais has a direct interest in finding that such surveillance
was legal and that CSIS acted properly and within ministerial guidelines
and directives under the CSIS Act.

61. This case is totally unlike that of Binnie J. in Wewaykum Indian Band,
supra, where he had had a limited administrative and supervisory role over
the case in his position as Associate Deputy Minister of Justice over 15
years before and could not even recall the case. Mr. Justice Blais was not
simply in an administrative, bureaucratic position. He was the Solicitor
General who was the ultimate person responsible and accountable for the
actions of CSIS to Parliament and the Canadian people. He was "the boss"
and the person who decided the major thrusts of CSIS operations. He held
this position when the Heritage Front was formed and targeted by CSIS. All
of these matters are part of the evidence against Zundel in the hearing. He
therefore has a direct conflict of interest with Zundel's defences and
legal position in these proceedings.

62. This case deals with the problems of a secret police force in a
democratic society. It is obviously extremely tempting for governments to
use the secret service, CSIS, to destroy intellectuals such as Ernst Zundel
who question the official version of history that exists today. Historical
beliefs form the basis of political policy of nations and their questioning
is deeply threatening to those in power. In a democratic society, Zundel
has a right to question and challenge those belief structures. In a fascist
and totalitarian society, he will be jailed and destroyed as a "national
security risk." There is nothing new under the sun. This case is a test of
whether democracy will survive in Canada.

63. Zundel is entitled to a fair and impartial hearing from a judge who has
not been the head of the secret service in Canada. Only an impartial
judiciary can protect the individual from the apparatus of the state.


PART IV - ORDER REQUESTED

64. The detainee, Ernst Zundel, requests that Mr. Justice Blais recuse
himself from the case.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

_____________________
Douglas H. Christie,
Barrister & Solicitor,
810 Courtney St.,
Victoria, B.C.
V8W 1C4
Tel: 250-385-1022
Fax: 250-479-3294


____________________
Barbara Kulaszka,
Barrister & Solicitor,
41 Kingsley Ave., Box 1635,
Brighton, Ontario
K0K 1H0
Tel: 613-475-3150
Fax: 613-475-0648

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