April 5, 2003
ZGram - Where Truth is Destiny: Now more than ever!
Today's punchy ZGram was written by Paul Fromm, Director of
the Canadian Association for Free Expression, CAFE. This is another one for
Dear Free Speech Supporter:
Here's my brief report on the two-day detention hearing for
Ernst Zundel, held March 31 and April 1. Two lawyers had quit on Ernst
Zundel. I was asked by supporters, consistent with our mandate to fight for
free speech, to act as Mr. Zundel's legal representative at these hearings.
Just to recap. Ernst Zundel, a German-born revisionist
publisher, had left Canada in 2000 and taken up residence in Sevierville,
Tennessee with his American wife Ingrid Rimland. On February 5, INS agents
arrested him for alleged violations, including failure to attend a hearing.
This situation is very complex. It appears that his then lawyer may have
made errors or let him down. Mr. Zundel is scrupulous about obligations and
legal matters and always sought to fulfill every requirement.
With unseemly haste, he was ordered deported and banned from
the U.S. for 20 years. He was returned to Canada.
Our Minister of Immigration Denis Coderre who has seldom met
a "refugee" claimant he didn't like snorted and roared. "Just
watch me," he threatened, emulating Pierre Trudeau vow to get the FLQ.
The absurd Coderre, already prejudging the Zundel case, said no one would
make a mockery of our refugee system. Well, that's already been done by him
and his department.
Mr. Zundel, since 1958, had been a landed immigrant. New
changes in the law decreed that if one was absent from Canada for three
years in five, one lost "landed immigrant status." At his first
hearing, Mr. Zundel was informed that he was no longer considered a
"landed immigrant." This decision is under appeal.
His only remaining recourse was to claim "refugee"
status based on a well-founded fear of persecution should he be returned to
Germany. The Germans have issued a request for his extradition to face
"hate" charges under a system where truth is no defence and where
a fierce and punitive fine and up to five years in prison await him.
On Monday, March 31, I arrived at the Niagara Falls, Ontario
Immigration Offices where the hearing would be held. Nearly 20 supporters
from around Southern Ontario and from as far away as Alabama gathered to
support the prisoner of conscience.
After numerous inquiries, I was told that "the
prisoner" had arrived. I was ushered into a small holding cell. There
was Ernst Zundel, unshaven, wearing a humiliating pumpkin orange prison
jumpsuit. Worst of all, he was in leg irons. A shame-faced guard removed
them as we began to discuss the case. I had less than 20 minutes to be
briefed as to what he wanted. I did have material prepared in advance by
I was accompanied by Wolfgang Mueller my CAFE colleague. He
and I had strategized about the case and he would help with translation of
some of the German documents pertinent to the file.
As we entered the hearing, a swarm of media surrounded Ernst
-- CTV, CBC, radio and numerous print outlets, including the TORONTO STAR,
THE HAMILTON SPECTATOR, THE ST. CATHARINES STANDARD, THE NIAGARA FALL
REVIEW, and the Canadian Press, oh yes, and THE CANADIAN JEWISH NEWS.
On the other side were no less than three government
lawyers. Normally, a slim mild-mannered man named Bill Reid handles these
cases. As he explained to me, he's not even a lawyer. So, if you're a
Jamaican drug dealer or gunman who's been ordered deported and are caught
trying to sneak in, or, if you're a Tibetan asylum shopper coughing u
multi-drug resistant TB, you face Bill Reid.
However, if you're a 64 year old pacifist, a Revisionist
publisher and publicist for unpopular views, then you face the A Team, the
Department of Justice's Dream Team. Heading the taxpayers' anti-free speech
hit squad was Donald MacIntosh. The government brought him in specially to
face Mr. Zundel. MacIntosh is one of their heavy hitters in war crimes
cases. The assignment seemed odd, as Ernst Zundel was all of 6 years old
when the war ended in 1945 and even his most fanciful and inventive foes
haven't accused him of war crimes.
MacIntosh, thin, inordinately pale, sports long shaggy grey
hair and would screw up his face into a grimace when questioning Mr. Zundel.
The Immigration and Refugee Board adjudicator was Robert
Murrant. In his opening remarks, he made it clear that he would first like
to hear submissions about 58.1.c of the Immigration and Refugee Protection
Act. Section 58.1 says that a person in custody under the Act shall be
released, unless the adjudicator is satisfied (c) "that the Minister is
taking necessary steps to inquire into a reasonable suspicion that they
[sic] are inadmissible on grounds of security." He, then, proposed a
definition that all but guaranteed the Crown victory. As he saw it, these
words meant that 1. he had to be assured that CSIS was undertaking an
investigation for the Minister of Immigration and that, 2., the Minister
said he had a reasonable suspicion that the detained person was a threat to
We also learned that Murrant had attended an in camera
hearing in Ottawa on March 25. This secret briefing by CSIS is part of the
Court of the Star Chamber proceedings that have been used against Ernst
Zundel. I strongly objected that such secret hearing, where we had no
opportunity to confront the witness or even know what was said, violated the
basic guarantees of Anglo-Saxon justice and Common Law; that the accused has
the right to face his accusers.
MacIntosh retorted that the Supreme Court endorsed such
secret testimony in its judgement in the Chiarelli case. Actually, in that
judgement the Supreme Court upheld Section 48.2 of the CSIS Act that can
exclude the accused from portions of a hearing. However, the Court noted:
"The CSIS Act ... recognizes the competing individual and state
interests and attempts to find a reasonable balance. ... Although the first
day of the hearing was conducted in camera, the respondent was provided with
a summary of the evidence presented." It must be noted that the
evidence in the Chiarelli case involved drug trafficking and murder.
Ernst Zundel's case involves the promulgation of ideas, not
the peddling of drugs or the commission of murder, I argued.
The first and only witness against Ernst Zundel was CSIS
agent David Stewart. Stewart indicated that CSIS was preparing a report for
Immigration Minister Denis Coderre was to whether Ernst Zundel constitutes a
threat to national security.
Stewart was then questioned on a four-page report, which he
said he hadn't written, but on which he could comment. This report is more
an ideological rant, more in keeping with a press statement from B'nai Brith
or an ARA screed than a balanced intelligence report. It is filled with
repeated use of smear words -- "neo-Nazi", "White
For all the alleged investigation that had been done into
Ernst Zundel, the report is based on two ancient media reports: a March 25,
1981 TORONTO STAR story about raids on rightist homes in Germany that turned
up literature supplied by Ernst Zundel; and a 1993 CBC "Fifth
Estate" programme linking Ernst Zundel to various right-wing groups in
Germany. He was alleged to have sent them money to distribute literature and
organize protests and to have supplied them with literature.
Stewart's appearance at the witness table was heralded by a
demand that no photos be taken of him for "security" reasons.
Because of his delicate job, MacIntosh alleged, Stewart's "personal
safety" might be in danger. I strongly objected that this melodrama was
injurious to Ernst Zundel, leaving the impression that somehow he or his
supporters might taken vengeance on the CSIS agent. Dark hints that one's
very life in jeopardy is a common tactic of anti-racist campaigners. Both
Warren Kinsella and Alan Dutton of the Canadian Anti-Racism Education and
Research Society have spread it about that their lives are in danger from
the far right. The joke of it is that it's people like Ernst Zundel who've
been on the receiving end of assaults and firebombings, not state agents
like Stewart or grant-catchers like Dutton. Murrant, of course, ordered that
the brave CSIS snoop not be photographed.
After brief testimony, Stewart, slim, witrh a typical
tightly trimmed cop moustache was mine for cross-examination. I asked him to
go over the definition of a threat to national security. The CSIS Act makes
it clear that threats to national security include espionage, activities
directed by a foreign state, attempts to violently overthrow the government
of Canada or "the threat of use of acts of serious violence against
persons or property for the purpose of achieving a political, religious or
ideological objective within Canada or a foreign state." I then had him
read the special warning Parliament included in the legislation, as it
sought to avoid the creation of a political police that would target
non-violent opponents of the government of the day or of the powerful groups
that back it. He read: A threat to national security "does not include
lawful advocacy, protest or dissent."
"Then, what is Ernst Zundel doing in your report?"
I demanded. The main allegations were that Zundel "was viewed as the
patriarch or leader of the White supremacist movement in Canada; was and
still is a leading distributor of revisionist neo-Nazi propaganda
world-wide, [and] ... maintained White supremacist contacts internationally
and channelled money through these contacts to promote his cause."
Even if all these accusations were true -- and we deny many
of them -- how would any of this fit the definition of "national
security?" I asked. Immediately MacIntosh was on his feet. Stewart, he
argued, was not a legal expert and could not give a legal opinion. Suddenly,
it seemed Stewart wasn't much of an expert on anything. He hadn't read the
report and couldn't or wouldn't report in any detail on the Zundel file.
Perhaps, he's not a legal expert, but he and CSIS are
supposed to operate with the law, I insisted. "Do Zundel's activities
even fall within the CSIS mandate? Are they not, if fact, simply non-violent
protest and dissent? I was thwarted in my pursuit of this vital information.
I then asked Stewart about some of the inflammatory labels.
"Would Ernst Zundel," for instance, "describe himself as a
White supremacist?" Stewart didn't know. I then questioned him as to
whether he knew the disposition of the charges arising from the raids of
1981 -- the subject of the sensationalist article that formed part of the
report. Stewart said he did not. Our CSIS expert cannot have done his
homework. In the detention hearing of February 28, Ernst Zundel asked the
same question and received the same answer. And, yet, CSIS is supposedly
actively inquiring into whether or not Zundel is a threat to national
In his testimony, Stewart said that the White supremacist
movement had been in decline since 1994. Zundel's return would serve as a
lightning rod perhaps to revive the movement. "But wasn't Ernst Zundel
in Canada until 2000 and in this six years somehow his presence didn't
revive the movement?" I was being stonewalled. "Isn't 1994
significant because that was the year CSIS agent and financial sugar daddy
Grant Bristow was exposed as a leading member of the Heritage Front?"
Objections from MacIntosh ensured that I never received a complete answer to
While Stewart asserted that he hadn't written the report, he
did admit to having edited it. The "Summary Report Concerning Ernst
Christof Friedrich Zundel" presented at this hearing was different in
some ways from a similar document presented at the February 28 hearing. If
anything, if was even more inflammatory and filled with invective. One
comical error in the earlier report spoke of "Zundel's battle for the
New World Order." The new improved report more accurately describes his
"battle against the New World Order." Was the error a momentary
lapse on the part of the eagle-eyed and apparently anonymous CSIS writer?
Or? We know that Ernst Zundel and a legal representative spoke about this
nonsensical statement over the prison phone.
Thus, I asked Stewart as my final question: "Was this
change the result of new information or of CSIS listening in on Mr. Zundel's
telephone calls?" MacIntosh was on his feet objecting furiously.
"I thought you might," I concluded.
Now, it was our turn. I called two witnesses, Karin Kruger
and Gerhard Haas. Miss Kruger testified that she was prepared to offer her
house as a surety for bail or guarantee for Ernst Zundel. She'd done this in
earlier trials he faced. Hr. Haas indicated that he'd provide a lodging for
Mr. Zundel when he's released.
We were now at the dramatic moment. Ernst Zundel, dressed in
his prison garbs, took the stand. He tore the four page report apart. He
went through his 20 year battle with the Canadian legal system. He had
always worked within the system. He'd fulfilled all his many bail conditions
and faithfully attended at all court appearances where he was required.
Ernst explained that he had first come to Canada to avoid military service
and explained that he was a pacifist. He had thrown people out of his home
for loose talk about violence. He indignantly refuted the allegation of
"White Supremacy" pointing out that he'd hired no-White and had
sheltered a Jamaican survivor of the Waco massacre for over seven months.
Mr. Zundel explained at length his operations in Germany.
Yes, he had funded literature distribution and meetings. However, his
emphasis was always on education, not violence. His one-time chief public
relations mad in Germany Ewald Altans, who was subsequently revealed to be a
homosexual working for the German Constitutional Police, had also always
Zundel's testimony was passionate and electrifying.
I next put to his some pages from Andrew Mitrovica's
bombshell book COVERT ENTRY: SPIES, LIES AND CRIMES WITHIN CANADA'S SECRET
SERVICE. This book, relying on the revelations of former CSIS paid snoop
John Farrell, reveals a sordid campaign of mail opening, lewdly named
Operation Vulva, directed against "not only the heads of Neo-Nazi
organisations in Canada but all 'racists, fascists and anti-Semites.'"
(9\p.127) One of their chief targets was Ernst Zundel. His mail was being
seized and opened and examined. Zundel testified that he knew of this spying
and said further that some of his mail, including divorce papers, had been
The explosive revelation from the book, however, was that at
a certain point Farrell's CSIS handler, an agent named Don Lunau, told him
not to touch any packages for Zundel, especially ones from a Vancouver
return address. "Farrell's own nervousness peaked when Lunau ordered
him to temporarily stop intercepting parcels destined for Zundel's home. ...
Lunau wasn't kidding. Farrell could hear the urgency in his voice. In May,
1995, a parcel arrived at Zundel door apparently from a Vancouver post
office box. "(P.138-139) it was a pipebomb. "Police said the bomb
was packed with enough explosives to seriously maim or kill anyone within 90
metres of the blast."
Had CSIS ever warned him about the bomb they clearly knew
was coming. "No" Mr. Zundel answered.
We tendered into evidence a notarized statement from Jurgen
Rieger, Mr. Zundel's German lawyer, outlining how, with one minor exception,
Zundel has been cleared of all charges and overturned state actions against
him, like the seizure on several occasions of his German postal banking
Ernst Zundel also confirmed that an Access to Information
Request had revealed that he'd been under police surveillance on and off
since 1958, when he attended anti-Communist meetings in Montreal.
As our second and final witness, I called Rev. Dr. Robert
Countess of Alabama, who has known Mr. Zundel for over 15 years. Rev.
Countess is a scholar of Biblical Greek and was for over 20 years a U.S.
Army chaplain. He is also a staunch historical revisionist and has become a
sort of spiritual counsellor to M. Zundel since his move to the U.S. about
three years ago. "Is Ernst Zundel a White supremacist?" I asked
Dr. Countess. Countess was emphatic in his testimony that Zundel was not a
racist or White supremacist and recounted how Zundel had hugged the orphaned
Haitian adopted son of a close friend whose memorial they had both attended.
The evidence in, it was now time for submissions or
argumentation. MacIntosh was insistent. He declared he didn't care how high
bail was set, Mr. Zundel would fail to comply with bail conditions. He
insisted that the government was continuing its investigation into Mr.
Zundel as a threat to national security and, therefore, he must remain in
In my submissions, I invited Adjudicator Murrant to consider
"the totality" -- a favourite phrase of Mr. MacIntosh -- of the
Immigration and Refugee Protection Act. Section 3.3 requires: "This Act
is to be construed and applied in a manner that (d) ensures that decisions
taken under this Act are consistent with the Canadian Charter of Rights and
Freedoms." I urged his to see that 58.1.c meant that the Minister of
Immigration must have a "reasonable suspicion" that Ernst Zundel
is a threat to national security.
I emphasized that Zundel had been a subject of police
investigation for over four decades. While Stewart wouldn't acknowledge how
long they'd been investigating Mr. Zundel, he did allow that "he was
known to them." For nearly a decade -- 1983 to 1992 -- Ernst Zundel had
been before the courts and had operated in a fishbowl. Furthermore, he was a
publicist, perhaps even a dramatic self-promoter. He was never shy, whether
through press releases, or speeches, or television programmes or video or
audiotapes to express his views. "Ernst Zundel is an open book, a known
quantity," I said. yet, despite the relentless attacks of his enemies
and extensive surveillance, neither in Canada nor in Germany had he ever
been charged with an offence involving violence, not assault, not conspiracy
to commit assault, not accessory after the fact. Indeed, Ernst Zundel has no
criminal record in Canada at all. His views might be unpopular, but
questioning one version of World War II, is "dissent",. not a
threat to national security. "There are no reasonable grounds to
believe that Zundel is a threat to national security."
I pointed out that many of the people who appear before him
are illegals with false ID or no ID. There may, indeed, be grounds to hold
them pending a national security investigation. Zundel is a public figure, a
well known quantity. What's there to investigate?
I pointed out that continued incarceration violated Mr.
Zundel's right under 11.d "not to be denied reasonable bail"
except in accord with the law. Zundel, under the arcane rules of the Niagara
Detention Centre, cannot have a pen. He must try to scribble his defence
notes with a tiny stub of pencil. I held up a sample to show Mr. Murrant. In
these conditions, he cannot mount a proper defence to the many cases he has
going under the Immigration Act and in the U.S. to regain his U.S.
immigration visa, I argued.
Furthermore, Mr. Zundel has a track record. He'd received
bail on numerous occasions and, to speed up the process, Mr. MacIntosh had
agreed that Zundel had attended all the hearings, as required. The same lady
was once again prepared to risk her house as a guarantee. Besides with an
expired passport and the prospect of 20 years in prison should he sneak back
to the U.S., where precisely was Ernst Zundel to go.
Perhaps indelicately, Ernst Zundel had said during his
testimony that human rights commission tribunal members and members of other
tribunals were party loyalists appointed by the Liberal or Conservative
governments of the day. Sadly, this is usually true. I invited Mr. Murrant
to defy the wishes of his political masters,. I reminded him that no one
remembers the name of the British judge who signed the death sentence of
many of the Irish rebels after the failed Easter Rebellion of q1916, but
everyone remembered the name of uprising leader Padraic Pearse.
Perhaps it went over his head.
In his rebuttal,. MacIntosh broke new legal ground. As he
sees it, national security means whatever we want it to mean. "The law
is a textured and complex instrument. The CSIS Act is only the starting
point to what constitutes a threat to national security," he said.
Murrant kept us in suspense. At 3:30, he told us he'd be
back with a decision in 45 minutes or with the announcement of when he'd
have the decision. He returned to say he'd need more time. At 5:30, we
returned to the hearing to learn Ernst Zundel's fate.
The usual procedure in announcing decisions is to briefly
summarize the positions of the two sides and then explain the judgement. The
Crown evidence was summarized and then agreed with entirely. Our arguments
were not just ignored, they were not even acknowledged. We might just as
well have spoken in Tagalog without a translator.
Murrant said: "Mr. Stewart testified that CSIS along
with the Citizsnship and Immigration Commission are in the process of
compiling a report that will be presented to the Minister. Because of the
volume of material involved, it is not yet complete. I am satisfied that the
Minister is taking steps to inquire into his reasonable suspicion. Is there
a reasonable suspicion that Mr. Zundel is inadmissible because of reasons of
security. The test of reasonable suspicion is quite low. It is less than
reasonable and probable grounds, less than a balance of probabilities."
He indicated that the Minister indicating he had a "concern" would
be sufficient to be "reasonable". The test here is: Is the
Minister taking reasonable steps to inquire,
I'm ordering the continued detention of Ernst Zundel. I
intend to set the next detention review for May 2, 2003.
Several tearful supporters hugged Ernst Zundel. The prison
officials seemed ashamed and allowed him a little extra time with his
friends and his spiritual counsellor Rev. Dr. Robert Countess.
As he was led away, Ernst Zundel said: "I am the last
German soldier of World War II."
Write to Canada's Immigration Minister and complain
over the unfair treatment Ernst Zündel has received.
Immigration Minister Denis Coderre
House of Commons
Telephone: (613) 995-6108
Fax: (613) 995-9755