Ernst Zundel
_______________________________________________________________________
Complaint under the Optional Protocol to the International Covenant
on Civil and Political Rights
_______________________________________________________________________
Against Canada
January 4, 2005
To: M. Patrick Gillibert
United Nations Human Rights Committee
United Nations Office at Geneva,
Palais Wilson
1211 Geneva 10, Switzerland
Fax: + 41 22 917 9022
Date: January 4, 2005
Name of Complainant: Ernst Zundel
Nationality: German
Date of Birth: April 24, 1939
Complainant's Lawyer: Barbara Kulaszka,
Barrister & Solicitor,
P.O. Box 1635, 41 Kingsley Ave.,
Brighton, Ontario Canada K0K 1H0
Telephone: 613-475-3150
Complaint:
This complaint is made by Ernst Zundel (hereinafter referred to as
"Zundel") under the Optional Protocol to the International Covenant
on Civil and Political Rights against the State of Canada for:
(a) violation of article 7, his prolonged detention and conditions of
detention entail cruel, inhuman and degrading treatment;
(b) violation of article 9, paragraph 1, because of the failure of
the State party to ensure the security of person, in particular,
because of the failure to investigate and prosecute numerous threats
and attacks on the person and property of Zundel;
(c) violation of article 9 because of arbitrary detention and
prolonged detention, in particular violation of article 9, paragraph
3, because of denial of bail; the denial of the right to know the
charges against him;
(d) violation of article 10 because of the conditions of detention;
(e) violation of article 14, paragraph 1, because he has been denied
a prompt and fair hearing by a competent and impartial tribunal;
(f) violation of article 14, paragraph 2, because of violation of
presumption of innocence on matters which are essentially of a penal
nature, although under the Canadian system they are dealt with as
civil and administrative matters;
(g) violation of article 14, paragraph 3, because of undue delay in
bringing the case to trial and violation of all right to due process
and a fair hearing;
(h) violation of articles 18 and 19, because of his detention is for
his opinions on historical matters and because of his expression of
said opinions
(i) violation of article 26, because over the years Zundel has not
been treated equally by the Canadian authorities, and, in particular,
has been subjected to discrimination and denied citizenship because
of his historical and political opinions.
Interim measures:
Mr. Zundel has been held in solitary confinement in Canadian
detention centres since February 19, 2003, almost two years. He is
currently held in the Toronto West Detention Centre, 111 Disco Rd.,
Box 4950, Rexdale, Ontario, Canada, M9W 1M3.
He is coming to the Committee now to request interim measures of
protection under rule 86 of the rules of procedure, in particular
1) release pending trial, bearing in mind that he has been held for a
very long period of time;
2) prohibition of deportation to Germany for as long as the Committee
is seized of the matter
The matter is urgent, as a decision by the designated judge against
Zundel, will result in his immediate deportation.
Chronology of Events:
Zundel was born in Germany in 1939 and lived in Canada for 42 years
from 1958 to 2000 as a permanent resident. He married a Canadian in
1959 and has two sons in Canada and several grandchildren.
He became a very successful graphic artist with businesses in
Montreal and Toronto. He was also active politically, appearing on
numerous radio talk shows and arranging anti-Communist demonstrations
in Montreal. He was the ethnic organizer for the Social Credit Party
in Quebec and subsequently joined the Liberal Party of Canada.
He increasingly became concerned about anti-German propaganda in the
media and its affects on his own children and others of German
descent. As a result, he started the organization "Concerned Parents
of German Descent". He lobbied the Ontario government numerous times
to bring charges under Canada's hate law against those disseminating
anti-German hate materials. He gave testimony and provided written
submissions to the Task Force on Human Relations chaired by Mr.
Walter Pitman in Toronto in 1977. His submissions decried the
stereotyping of Germans in comics, newspapers and such movies and TV
programs as Marathon Man, Hogan's Heroes, The Diary of Anne Frank and
North of the 49th Parallel.
In 1968, he ran for the leadership of the Liberal Party of Canada, on
a platform urging greater recognition for immigrants. Prior to
running, he had applied for his Canadian citizenship and his
application was approved by the Citizenship judge. However, the
application was subsequently refused by the Minister for Immigration.
No reason was given. Years later, in applications under the Privacy
Act, he was informed by the Immigration Department that no record
existed in his files as to why his application for citizenship had
been denied.
During this time period, Zundel started investigating historical
issues pertaining to Germany. He became convinced that allegations
that the German nation had committed an extermination of Jews during
World War II were not true and constituted wartime atrocity
propaganda. He traveled extensively interviewing many individuals and
writers who had personal knowledge of events during World War II or
had studied the era extensively. During this period, Zundel averaged
160 interviews a year during the 1970s in radio talk shows. Typical
topics were UFO's and the history of World War II.
He eventually began publishing his own materials and newsletters in
outreach programs. He incorporated his own publishing company,
Samisdat Publishers Ltd. in 1977.
In the early 1980s he published the booklet "Did Six Million Really
Die?" written by Richard Harwood. The booklet was sent to hundreds of
religious pastors and ministers, Members of Parliament and
legislative assemblies and the media. The booklet explored the
historical issue of the treatment of Jews during World War II by
Germany and expressed doubt that six million Jews could have been
killed by the Nazis. It also questioned whether gas chambers ever
existed as alleged in such concentration camps as Auschwitz and
Birkenau.
Samisdat also started producing videos, such as "Genocide by
Propaganda", which set out many examples of anti-German stereotyping
and hate propaganda.
In 1981, following a complaint lodged by the Canadian Holocaust
Remembrance Association, an Interim Prohibitory Order was made by the
Minister responsible for Canada Post Corporation against Zundel's
publishing company, Samisdat, banning it from the use of the mails on
the grounds that Samisdat was using the mails to send hate
propaganda, contrary to the Criminal Code. The primary documents
complained of were the pamphlet "The West, War and Islam" and the
booklet "Did Six Million Really Die?". Following a five day hearing,
a Board of Review appointed to inquire into the facts of the case,
held that the order should be lifted. It held:
"While the Board finds that Mr. Zundel's writings are in bad taste
and no doubt offensive to some, the Board is not satisfied that it
has been established that this material amounts to the promotion of
hatred contrary to Section 281.2(2) of the Criminal Code...The Board
believes that what is before it is a much larger problem or struggle
between two peoples i.e. the Germans and the Jews and is reluctant to
recommend to the Minister that the interruption of mail service
should be continued."
Samisdat's mailing privileges were restored by the Minster in November of 1982.
In 1984, he was privately charged by Sabina Citron, the head of the
Canadian Holocaust Remembrance Association, with the criminal offence
of spreading false news in the booklet, "Did Six Million Really Die?".
Citron further charged Zundel with spreading false news in "The West,
War and Islam," the same pamphlet that had been the subject of the
postal hearings. The pamphlet attempted to warn Muslims of the
demonization of Islam which was occurring in the West and how such
distorted viewpoints were being used to goad the West into a criminal
war against the Islamic World. In the pamphlet Zundel stated: " ...
Certainly, the West has at its disposal tremendous facilities for the
education of the public but until now, these facilities of
information, education and entertainment have been used purposely to
misinform, to miseducate and to instill hatred against the Islamic
peoples. Just as certainly, this situation has not come about by
accident, for the media by which disinformation is being disseminated
are controlled by a small group of unscrupulous men who know exactly
what they are doing and who will stop at nothing in order to attain
their criminal and murderous ends." He urged Muslims to use
informational campaigns to educate Westerners about Islam and their
culture and warned that unless they did so, they would suffer the
same fate as the Germans.
The criminal proceedings were taken over by the Crown as a public
prosecution. Zundel's graphic arts business was destroyed as a result
of the prosecution.
In 1984, shortly before his trial began, a bomb exploded outside his
house, damaging his garage. No person was ever charged with this
offence.
Zundel was beaten on the steps of the courthouse by members of a
violent Jewish group when he appeared for court dates. No persons
were ever convicted for these attacks. Thereafter, Zundel wore a hard
hat and bulletproof vest to court appearances.
Zundel was acquitted on all charges concerning "The West, War and Islam."
He was convicted, however, of the charges with respect to "Did Six
Million Really Die?" and sentenced to fifteen months' imprisonment,
plus three years' probation with the condition that he "not publish
in writing or by speaking in public by word of mouth, directly or
indirectly, in his name or in any other name, corporate or personal,
anything on the subject of the Holocaust or on any subject related
directly or indirectly to the Holocaust." He was released on bail
pending appeal under extremely stringent conditions.
The federal government immediately commenced deportation proceedings
and a deportation order to Germany was issued on April 29, 1985. This
removal order was quashed in 1987 on the grounds that it was made
contrary to law.
Zundel successfully appealed his criminal conviction and a new trial
was ordered. On January 18, 1988, Zundel's second jury trial on the
charge of spreading false news in the pamphlet "Did Six Million
Really Die?" commenced. Zundel was convicted after a four month trial
and on May 13, 1988 was sentenced to nine month's imprisonment.
Zundel was again released on bail on stringent conditions.
Zundel appealed both his conviction and sentence to the Ontario Court
of Appeal. The appeals were heard in September of 1989. Both appeals
were dismissed on February 5, 1990.
Zundel applied for and received leave to appeal to the Supreme Court
of Canada on the issue of the constitutionality of the "false news"
law. The appeal was heard on December 10, 1991 and on August 27,
1992, the appeal was allowed. Zundel was acquitted. The Court held
that that the "false news" law was in violation of Zundel's
guarantees to freedom of expression under the Canadian Charter of
Rights and Freedoms which could not be justified in a free and
democratic society.
Throughout the years 1985 to 1992, Zundel was subjected almost
continuously to stringent bail conditions requiring him not to
publish certain opinions, to inform authorities of his whereabouts
when he traveled and to be of good behaviour. Zundel complied with
all bail conditions.
Several days after Zundel's acquittal by the Supreme Court of Canada,
the Canadian Jewish Congress laid a lengthy complaint against him
with police alleging that "Holocaust denial" was hatred and
anti-Semitism and that Zundel's statements to the media that the
"Holocaust was a hoax" constituted "Holocaust denial." In March of
1993, the Pornography/Hate Literature Section of the Ontario
Provincial Police informed the Canadian Jewish Congress that the
statements had been investigated and were found not to constitute the
offence of inciting hatred contrary to the Criminal Code. As a
result, no charges were laid.
In 1993, Zundel applied for Canadian citizenship for the second time.
Several months later, in June of 1994, Toronto Sun newspaper
columnist Christie Blatchford revealed that Zundel had applied for
citizenship and wrote that a senior official in the Ministry of
Citizenship and Immigration told her that they would "try very hard
to deny it" notwithstanding that the application was "flawless."
Newspaper stories and editorials across the country demanded that
Zundel not be given citizenship because of his unpopular views on the
Holocaust.
In the spring of 1994, several Marxist street groups organized to
attempt to drive Zundel out of his neighbourhood in Toronto.
Pamphlets were distributed calling him a "hatemonger" and "white
supremacist" and calling for his charging under Canada's hate laws.
These groups began a campaign of posters put up across Toronto with
Zundel's face in a rifle sight, giving directions to his home with
instructions on how to build Molotov cocktails. Street graffiti
appeared on fences and buildings calling for people to "drive Zundel
out." Zundel lodged complaints with Toronto police but nothing ever
came of his complaints.
On April 14, 1995, Zundel received a razorblade attached to a
mousetrap in his mail from a group called "Anti-Fascist Militia." The
group warned that a bomb would be next. No person was ever charged
with this offence.
On May 7, 1995, an arsonist torched Zundel's house which was almost
completely gutted on the second and third floors, causing over $
400,000.00 in damages and destroying an extensive library and rare
book collection. No person was ever charged with this offence. After
the arson, Zundel suffered from severe anxiety, loss of memory, and
loss of concentration.
At the end of May 1995, a powerful pipe bomb was sent to Zundel
through the mails from Vancouver, British Columbia. Suspicious of the
parcel, he took it unopened to the police. The bomb contained nails
and metal shrapnel; Toronto police determined it would have killed
anyone who opened it and anyone within 90 metres of the blast.
In 2002, the book "Covert Entry" written by journalist Andrew
Mitrovica and published by Random House Canada, raised the serious
possibility that Canada's federal intelligence agency, the Canadian
Security Intelligence Service (hereinafter referred to as "CSIS")
knew about the bomb sent to Zundel but allowed it to pass through the
mail system unhindered. CSIS at the time had Zundel under constant
surveillance and opened and intercepted much of his mail.
In a 63 page information to obtain a search warrant sworn on March
19, 1997 by Constable Warren Ryan of the Royal Canadian Mounted
Police in British Columbia, Constable Ryan swore that he had
reasonable grounds to believe that Darren Thurston and David
Barbarash were guilty of the offence, inter alia, of attempted murder
of Zundel, by mailing an explosive device, contrary to section 239 of
the Criminal Code. However, when charges were laid against Thurston
and Barbarash in March of 1998, the attempted murder of Zundel was
not included. In 2000, all charges against Thurston and Barbarash
were stayed. No one has ever been charged with his attempted murder.
In August of 1995, Zundel was given notice that his application for
citizenship had been suspended on the grounds that the Minister for
Citizenship and Immigration believed reasonable grounds existed to
believe that he was a threat to the national security of Canada.
On October 30, 1995, Zundel was served with the Statement of
Circumstances outlining why he was allegedly a threat to national
security. The certificatealleged that Zundel had never committed any
violence himself but that his status in the "right wing" meant that
he might advocate others to do so in the future.
In November of 1995, Sabina Citron, the Jewish woman who had
instituted the criminal proceedings against Zundel in 1984, laid a
private information against Zundel again, this time for criminal
defamatory libel and conspiracy to incite hatred contrary to the
Criminal Code. The charges alleged that Zundel conspired with Ewald
Althan, David MacLeer and Christian Worch in 1994 and 1995 to promote
hatred based on the TV program W5. The second charge alleged that
Zundel committed defamatory libel of Beate Klarsfeld, Simon
Wiesenthal, Sol Litman, Rabbi Cooper, Michael Berenbaum and Deborah
Lipstadt in his newsletter published in May of 1994. In March of
1996, the Crown took over and withdrew the charges on the grounds
that there was no reasonable prospect of a conviction.
In 1996, Sabina Citron and then Toronto mayor Barbara Hall,
representing the Toronto Mayor's Committee on Community and Race
Relations, filed complaints against Zundel with the Canadian Human
Rights Commission, alleging that Zundel was inciting hatred in the
"Zundelsite", a website, contrary to section 13 of the Act. Several
publications were complained of, including the pamphlet "Did Six
Million Really Die?."
The hearing before the Human Rights Tribunal commenced in May of 1997
and ended in February of 2001 with some 53 days of hearings. Zundel
was not allowed to call any evidence as to the truth of the
publications in issue, nor of his intent, both of which had been
defences to the false news law and attempted charges under the hate
propaganda law.
On January 18, 2002, Reva Devins and Claude Pensa, Tribunal Members,
found "Did Six Million Really Die?" and other materials complained of
to constitute hate propaganda. Pensa and Devins held that Zundel
controlled and operated the "Zundelsite", the website complained of
in hearing, in spite of evidence that the website was situated in
America and run by Zundel's wife, Ingrid Rimland Zundel.
Zundel withdrew his application for citizenship in December of 2000.
As no further basis for the security hearings existed, the
proceedings were ended. Zundel left Canada in 2000 to live with his
wife in America, hoping for peace and relief from the violence and
persecution he had endured in Canada for twenty years.
Zundel has no criminal record in Canada or the United States.
Zundel was deported from the United States to Canada on February 17,
2003 after being accused of missing an immigration appointment. He
has now taken legal proceedings in the United States challenging the
validity of the deportation and its legality.
Canadian officials refused to allow United States immigration
officials to bring Zundel into Canada on February 17th and he was
taken to a holding centre in Batavia, New York. On February 19, 2003,
he was taken again to the Canadian border at Fort Erie and this time
was allowed entry into Canada and immediately taken into detention.
He claimed refugee status immediately. The Canadian Minister of
Citizenship and Immigration Denis Coderre expressed fury that Zundel
had applied for refugee status and threatened to take all action
necessary to prevent the system from being "trampled on." (Toronto
Star, February 21, 2003).
Zundel has been in prison in Canada in solitary confinement since
February 19, 2003.
He was initially detained under section 55 of the Immigration and
Refugee Protection Act. Two reports were issued against Zundel under
44(1) of the Act. The first report stated that Zundel was
inadmissible under paragraph 34(1)(d) of the Act in that there were
reasonable grounds to believe that he was a permanent resident who
was inadmissible on security grounds for being a danger to the
security of Canada. The second report stated that Zundel was
inadmissible under section 41(b) in that there were grounds to believe
that Zundel was a permanent resident who had failed to comply with
the residency obligations of section 28 of the Act.
With respect to his claim for Refugee Protection, on February 24,
2003, the claim was deemed eligible for decision by the Refugee
Protection Division of the Immigration and Refugee Board. On the same
day, however, the Refugee Protection Division was notified by
Citizenship and Immigration Canada that pursuant to section 103(1) of
the Immigration and Refugee Protection Act, the Division was required
to suspend consideration of the refugee claim on the grounds that
Zundel's case had been referred to the Immigration Division for a
determination on inadmissibility on grounds of security.
Zundel was ordered held in detention and thereafter began a series of
detention review hearings pursuant to section 58 of the Act. In each
of these hearings, it was held that the Minister was taking steps to
inquire whether reasonable grounds existed that Zundel was a threat
to national security. Zundel's detention was ordered to be continued
after each hearing.
On May 1, 2003, the Minister of Citizenship and Immigration and the
Solicitor General of Canada signed a certificate against Zundel
finding him to be inadmissible to Canada on grounds of security. This
certificate was issued pursuant to section 77 of the Act:
77. (1) The Minister and the Solicitor General of Canada shall sign a
certificate stating that a permanent resident or a foreign national
is inadmissible on grounds of security, violating human or
international rights, serious criminality or organized criminality
and refer it to the Federal Court, which shall make a determination
under section 80.
Zundel was served with an arrest warrant while held in detention in
the Niagara Detention Centre. The warrant was issued pursuant to
section 82 of the Act:
82. (1) The Minister and the Solicitor General of Canada may issue a
warrant for the arrest and detention of a permanent resident who is
named in a certificate described in subsection 77(1) if they have
reasonable grounds to believe that the permanent resident is a danger
to national security or to the safety of any person or is unlikely to
appear at a proceeding or for removal.
The provisions of the Immigration and Refugee Protection Act
regarding the certificate review hearing and detention review are
contained in section 78-84 of the Act, as follows:
78. The following provisions govern the determination:
(a) the judge shall hear the matter;
(b) the judge shall ensure the confidentiality of the information on
which the certificate is based and of any other evidence that may be
provided to the judge if, in the opinion of the judge, its disclosure
would be injurious to national security or to the safety of any
person;
(c) the judge shall deal with all matters as informally and
expeditiously as the circumstances and considerations of fairness and
natural justice permit;
(d) the judge shall examine the information and any other evidence in
private within seven days after the referral of the certificate for
determination;
(e) on each request of the Minister or the Solicitor General of
Canada made at any time during the proceedings, the judge shall hear
all or part of the information or evidence in the absence of the
permanent resident or the foreign national named in the certificate
and their counsel if, in the opinion of the judge, its disclosure
would be injurious to national security or to the safety of any
person;
(f) the information or evidence described in paragraph (e) shall be
returned to the Minister and the Solicitor General of Canada and
shall not be considered by the judge in deciding whether the
certificate is reasonable if either the matter is withdrawn or if the
judge determines that the information or evidence is not relevant or,
if it is relevant, that it should be part of the summary;
(g) the information or evidence described in paragraph (e) shall not
be included in the summary but may be considered by the judge in
deciding whether the certificate is reasonable if the judge determines
that the information or evidence is relevant but that its disclosure
would be injurious to national security or to the safety of any
person;
(h) the judge shall provide the permanent resident or the foreign
national with a summary of the information or evidence that enables
them to be reasonably informed of the circumstances giving rise to
the certificate, but that does not include anything that in the
opinion of the judge would be injurious to national security or to
the safety of any person if disclosed;
(i) the judge shall provide the permanent resident or the foreign
national with an opportunity to be heard regarding their
inadmissibility; and
(j) the judge may receive into evidence anything that, in the opinion
of the judge, is appropriate, even if it is inadmissible in a court
of law, and may base the decision on that evidence.
Proceedings suspended
79. (1) On the request of the Minister, the permanent resident or the
foreign national, a judge shall suspend a proceeding with respect to
a certificate in order for the Minister to decide an application for
protection made under subsection 112(1).
Proceedings resumed
(2) If a proceeding is suspended under subsection (1) and the
application for protection is decided, the Minister shall give notice
of the decision to the permanent resident or the foreign national and
to the judge, the judge shall resume the proceeding and the judge
shall review the lawfulness of the decision of the Minister, taking
into account the grounds referred to in subsection 18.1(4) of the
Federal Courts Act.
2001, c. 27, s. 79; 2002, c. 8, s. 194.
Determination
that certificate is reasonable
80. (1) The judge shall, on the basis of the information and evidence
available, determine whether the certificate is reasonable and
whether the decision on the application for protection, if any, is
lawfully made.
Determination that certificate is not reasonable
(2) The judge shall quash a certificate if the judge is of the
opinion that it is not reasonable. If the judge does not quash the
certificate but determines that the decision on the application for
protection is not lawfully made, the judge shall quash the decision
and suspend the proceeding to allow the Minister to make a decision
on the application for protection.
Determination not reviewable
(3) The determination of the judge is final and may not be appealed
or judicially reviewed.
Effect of
determination -- removal order
81. If a certificate is determined to be reasonable under subsection 80(1),
(a) it is conclusive proof that the permanent resident or the foreign
national named in it is inadmissible;
(b) it is a removal order that may not be appealed against and that
is in force without the necessity of holding or continuing an
examination or an admissibility hearing; and
(c) the person named in it may not apply for protection under
subsection 112(1).
Detention
Detention
of permanent resident
82. (1) The Minister and the Solicitor General of Canada may issue a
warrant for the arrest and detention of a permanent resident who is
named in a certificate described in subsection 77(1) if they have
reasonable grounds to believe that the permanent resident is a danger
to national security or to the safety of any person or is unlikely to
appear at a proceeding or for removal.
Mandatory detention
(2) A foreign national who is named in a certificate described in
subsection 77(1) shall be detained without the issue of a warrant.
Review of
decision for detention
83. (1) Not later than 48 hours after the beginning of detention of a
permanent resident under section 82, a judge shall commence a review
of the reasons for the continued detention. Section 78 applies with
respect to the review, with any modifications that the circumstances
require.
Further reviews
(2) The permanent resident must, until a determination is made under
subsection 80(1), be brought back before a judge at least once in the
six-month period following each preceding review and at any other
times that the judge may authorize.
Order for continuation
(3) A judge shall order the detention to be continued if satisfied
that the permanent resident continues to be a danger to national
security or to the safety of any person, or is unlikely to appear at
a proceeding or for removal.
Release
84. (1) The Minister may, on application by a permanent resident or a
foreign national, order their release from detention to permit their
departure from Canada.
Judicial release
(2) A judge may, on application by a foreign national who has not
been removed from Canada within 120 days after the Federal Court
determines a certificate to be reasonable, order the foreign
national's release from detention, under terms and conditions that
the judge considers appropriate, if satisfied that the foreign
national will not be removed from Canada within a reasonable time and
that the release will not pose a danger to national security or to
the safety of any person.
In May, 2003, the Honourable Mr. Justice Pierre Blais, P.C. of the
Federal Court of Canada (Trial Division), one of the judges
designated by the Chief Justice of the Federal Court to conduct
certificate reviews, began proceedings to review the reasonableness
of the Certificate pursuant to sections 77, 78 and 80 of the Act.
These proceedings have taken place on a number of dates from May 2003
to November 2004, including the following: 2003 - May 9, 16; July
28-30; September 23-24; November 6-7; December 10-11; 2004 - January
22-23, 26-27; February 9, 12, 18-19; April 13, 14, 29, 30; May 4, 5;
June 9; July 27; August 6, 11; August 30, 31; September 1, 2, 14, 16,
17; October 19, 20; November 1, 2.
The decision by Justice Blais as to the reasonableness of the
certificate is currently under reserve and may be rendered at any
time. A finding that the certificate is reasonable will result in the
immediate deportation of Zundel.
Secret proceedings took place before Justice Blais prior to the
commencement of the hearing and throughout the hearing. No notice of
the secret proceedings was ever given to Zundel's lawyers.
Secret proceedings took place after the detention hearing had
concluded, while Justice Blais had reserved and was considering
whether to grant bail to Zundel. After the secret sessions, Justice
Blais issued his order denying bail. After the Minister and Solicitor
General had finished presenting their public case and while Zundel
was in the middle of presenting his response, the Minister and
Solicitor General repeatedly presented more secret evidence against
Zundel. Justice Blais even had a secret session with the Crown during
a lunch break in the public proceedings. The secret case is not
limited to reply evidence. The case can secretly change in any way
while being responded to. Zundel and his counsel do not know how it
has changed in this case. There will be (or have been) secret final
argument by the Crown after the completion of public final arguments.
The public case by the Ministers alleges that Zundel is a "white
supremacist" which the government defines as "racists, neo-Nazis and
anti-Semites who use violence to achieve their political objectives."
Zundel is alleged to be an "influential individual" who has
"supported violence" 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."
A large part of the "White Supremacist Movement" that CSIS alleges
Zundel influences and directs is a group called "The Heritage Front".
The Heritage Front is a pivotal aspect of the case against Zundel and
covers the years 1989 to 1994 in particular. In 1994, it was revealed
in a major Toronto newspaper, that one of the co-founders of the
group, Grant Bristow, was in fact an agent of Canada's spy agency,
CSIS. Bristow had formed the group in 1989 with another man, Wolfgang
Droege, during the period when Justice Blais was the Solicitor
General of Canada, having direct Ministerial responsibility for CSIS.
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 Canadian
press. The Security Intelligence Review Committee ("SIRC"), the
agency charged with monitoring CSIS, 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.
While he was Solicitor General, Justice Blais had issued in October
of 1989 a direction to CSIS regarding the use of human sources. In
its 1994 report, SIRC stated that these directions were "seriously
deficient" and should be "re-examined" given what had happened with
Grant Bristow and the Heritage Front.
Justice Blais was the 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 Justice Blais and the defence positions of Zundel.
Zundel brought a motion before Justice Blais requesting that he
remove himself from the case given this direct conflict but he
refused.
No witnesses were called against Zundel in the public portion of the
hearings by the Minister and Solicitor General.
The sole public evidence against him consisted of 5 volumes mainly of
newspaper articles, other media articles, website printouts, extracts
from books and similar materials written by people not called by the
Minister or the Solicitor General as witnesses. The evidence against
him was compiled by CSIS. Zundel was not even mentioned in almost all
of the documents presented. Only two or three documents, out of
hundreds, were actually written by Zundel. These few documents by
Zundel have been published for many years and have never been the
subject of any criminal proceedings in Canada, a country which has
hate propaganda criminal laws.
Not one of the authors of the documents introduced into evidence
directly by the Minister's lawyers (not through any witness to prove
the provenance of the documents) was called for cross-examination.
The Minister and Solicitor General have admitted that the public
evidence does not prove that Zundel was a threat to the security of
Canada. Therefore, the real case against Zundel is in fact totally
secret.
Two CSIS agents were subpoenaed by the defence but the
cross-examination of them was almost totally destroyed by
interventions and rulings of Justice Blais.
Counsel for Zundel brought motions for Mr. Justice Blais to recuse
himself from the case on various grounds, including the fact that he
was a former Solicitor General who was in charge of CSIS, the
organization providing all of the evidence against Zundel, during the
very time period in question in the proceedings. Mr. Justice Blais
refused all applications.
Mr. Justice Blais refused to grant bail to Zundel notwithstanding the
fact that the government admits that Zundel is not violent and has no
record of any violent activity.
Violation of Optional Protocol to the International Covenant on Civil
and Political Rights
Zundel alleges Canada is violating Articles 7, 9, 10, 14, 18, 19 and
26 of the Optional Protocol.
Articles 7 and 10:
Zundel suffers from depression as a result of his prolonged detention
in solitary confinement.
He is not allowed to have a chair in his cell.
He is not allowed to wear shoes.
The lights are on 24 hours a day in his cell and only dimmed slightly at night.
He is not allowed to use a pen, only a pencil stub.
He is not allowed to take his herbal remedies for his arthritis and
extremely high blood pressure.
His request to see a dentist was ignored for one year.
He is allowed only ten minutes a day outside. He has no access to any
gym or other facilities for walking or exercising.
The cell in winter is brutally cold, such that he has to wrap himself
in sheets and blankets.
The food served is always cold and of very poor quality.
Mail (ingoing and outgoing) is often withheld for weeks.
There are hundreds of unnecessary strip searches.
He suffers from a mass in his chest which may or may not be
cancerous. Justice Blais has been aware of this condition for over a
year yet refused to release him on bail.
Article 9:
Zundel has been detained under national security legislation but has
never been informed of the real case against him. The government has
admitted that the public case against him does not prove that he is a
national security threat. Therefore, it is in the secret proceedings
that the real case against him is being presented to the judge
without any knowledge of that case by Zundel or his lawyers or any
means of countering that case.
The judge hearing his case refused to deal with the detention of
Zundel in a timely manner but insisted that all evidence heard on the
detention review also went to the case itself. The result was a
lengthy hearing into the detention before the judge finally ruled 8
months later that he would not be allowed bail.
Zundel has been refused bail repeatedly notwithstanding that he is
non-violent, has no criminal record in Canada and has a record of
fulfilling all bail conditions imposed on him from 1985 to 1992
during the criminal proceedings.
There is no appeal procedure to question the refusal to grant bail.
The only procedure available is to bring a full-blown action in the
Federal Court to challenge the validity of the national security
provisions of the Immigration and Protection of Refugee Act. This
procedure will entail years of litigation.
Further, Canada has violated article 9, paragraph 1, because of the
failure of the State to protect Zundel from attacks, and the failure
to properly investigate the two bomb attacks, death threats, the
devastating arson of his home and business and the razorblade
incident. This amounts to a failure by Canada to ensure "security of
person", as required under article 9, paragraph 1. No persons have
ever been charged with any of these serious offences. The consistent
pattern of failing to apprehend the perpetrators of these serious,
violent and extremely damaging offences over a period of years
indicates Canada failed in the most basic way of protecting Zundel's
security and upholding its own laws.
This failure is made all the more serious by the fact that a former
CSIS agent has alleged that the intelligence service knew that a pipe
bomb was being sent from Vancouver to Zundel through the post office,
yet did nothing.
Article 14:
The proceedings against Zundel are not criminal, but are under
national security legislation. He is charged with no offence, but is
stated to be inadmissible to Canada on the grounds of being a threat
to the security of Canada for "engaging in terrorism," "being a
danger to the security of Canada," "engaging in acts of violence that
would or might endanger the lives or safety of person in Canada" and
"being a member of an organization that there are reasonable grounds
to believe engages, has engaged or will engage" in the above-noted
acts. These facts include those that "have occurred, are occurring or
may occur" in the future.
The government is not required to prove any facts beyond a reasonable
doubt nor even on a balance of probabilities. It is required only to
show that the certificate is reasonable.
It is submitted that national security legislation places a far
greater penalty on the defendant than criminal legislation. All
rights are taken away from such a person. He is not informed of the
case or the evidence against him. This is evident in the Zundel case
where Canada has admitted that the real case against him has been
revealed in the secret hearings, not in the public evidence. Hearsay
evidence is admissible against him. Yet, he is subject to the burden
of being classified as a terrorist, rendered inadmissible to Canada
where he has lived for 42 years and has children and grandchildren,
and deported to Germany where he may face further prosecution for
offences not applicable in Canada.
It is submitted that such persons, by analogy, must be entitled at
the minimum, to the presumption of innocence and due process.
Further, the government must be required to prove its case against
such a defendant with a burden of proof that goes beyond mere
"reasonableness."
The entire case against Zundel is secret. The "public hearing" is a
sham, a show trial to give the impression that some sort of justice
is being done. While the form of fair hearings with due process has
been maintained, the requirements of natural justice have been gutted
and destroyed.
Zundel has a reasonable apprehension that the Justice Blais is biased
against him. Justice Blais is a former Solicitor General of Canada.
He had direct Ministerial responsibility for CSIS in 1989, within the
time frame during which it is alleged Zundel became a national
security threat. 1989 was also the year that the Heritage Front was
formed using a CSIS human source, Grant Bristow. Zundel's alleged
associations with members of this group form the crucial aspect of
the public case against him. Repeated motions to have Justice Blais
remove himself from the case have been unsuccessful. Justice Blais
has repeatedly interrupted the defence case and treated Zundel's
lawyers with contempt. He has denied crucial lines of
cross-examination and argument.
Article 18 and 19:
The ICCPR states that "Everyone shall have the right to freedom of
thought, conscience and religion." And "Everyone shall have the right
to hold opinions without interference." The articles go on to clarify
these rights. Importantly, they protect the right of individuals
"freedom to seek, receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing or in
print, in the form of art, or though any other media of his choice."
In this case, Zundel has been imprisoned and classified as a national
security threat because of what he allegedly might say in the future
and what others might do who listen to him and read his materials. In
the words of the Canadian government, "Zundel has virtually no
history of direct personal engagement in acts of serious violence.
However, his status within the milieu is such that adherents are
inspired to actuate his ideology."
Zundel lived in Canada from 1958 to 2000 and has no criminal record.
He has never been charged with any offence involving any type of
violence directly or indirectly. He has never been charged with the
offence of inciting hatred notwithstanding numerous attempts by
groups which support the State of Israel to have such charges laid.
In the United States, the FBI conducted an investigation of Zundel as
part of the immigration process. It concluded: "In view of the fact
that there is no indication that the subject is, or ever has been
involved in any acts of violence, acts of domestic terrorism, or any
other criminal activity within the United States, recommend this case
be closed administratively." (Investigative Report, U.S. Department
of Justice, Federal Bureau of Investigation, 04/09/2001)
Zundel is being held in prison under national security allegations
that rest, not on serious violence or any type of violence, but
solely on his opinions which question the British/United States
version of Germany's treatment of its Jewish population during World
War II and his work in sharing that information with others and
receiving information from others.
This is the very type of activity that Articles 18 and 19 are
designed to protect. Zundel is a researcher, a writer, a publisher, a
producer of radio and TV documentaries and interview-type shows. He
shares his opinions with others. He receives information and opinions
from others. He may or may not share the opinions of people that he
speaks with or interviews.
Yet, Canada has held Zundel in prison in solitary confinement for two
years based solely on his activities as a writer and publisher.
Canada admits it has no evidence that he is violent or has engaged in
any type of violence. But it dislikes his historical views.
Nevertheless, Zundel has never been charged with inciting hatred
against Jews or any other group in Canada notwithstanding the fact
that powerful Zionist organizations have attempted numerous times to
have such charges laid.
Zundel is not a hate propagandist under Canadian law.
The national security charges against Zundel are politically
motivated and arbitrary and violate all civilized norms enshrined in
Articles 18 and 19.
Zundel is being held essentially as a political prisoner because of
his beliefs. The fact that he does not believe in the Allied version
of the Nazi treatment of Germany's Jewish population, does not
constitute a threat to national security.
Zundel has endured and continues to endure persecution because of his
convictions. Zundel, in good conscience, believes that there are
numerous aspects of the established historiography on the fate of the
Jews during World War II that require further research and revision.
He believes that the current historiography entails an illegal attack
on the honour and reputation of all Germans and contributes to
discrimination against Germans in many fields. Zundel does not
intend to defame Jewish individuals or Jewish people, but he wishes
to prevent further defamation and discrimination of Germans. Zundel
believes that open discussion on the issues surrounding this
historical issue is necessary in a democratic society and that it is
not the function of lawyers and judges to pronounce dogma on
historical matters. Zundel has proven the authenticity and the
strength of his belief by suffering considerable social and economic
ostracism because of his views. Zundel believes that his opinion on
historical matters is protected not only under article 19 but also
under article 18 of the Covenant.
Article 26:
Zundel has not been treat equally under the law of Canada by the
Canadian authorities for many years, but in fact has been subjected
to discrimination and denied citizenship because of his historical
and political opinions.
Repeated complaints and prosecutions were made over and over
regarding the same publications, namely, "Did Six Million Really
Die?" and "The West, War and Islam." These prosecutions were
conducted under various statutes, dealing with mail, crimes, human
rights and national security, but all had the purpose of persecuting
Zundel for his lawful opinions regarding World War II. When a
prosecution failed under one statute, another prosecution was started
under another law.
Canada used the allegation that he was a threat to the security of
Canada to disallow his application for citizenship, which a
government official admitted was "flawless." The State party of
Canada searched for a way to disallow the citizenship application and
it used the national security provisions of the law to do so. The law
was applied, not to protect Canadians, but for the ulterior and
improper purpose of denying Zundel his Canadian citizenship. They
also had the effect of stopping Zundel's claim for refugee status,
which the Minister for Citizenship and Immigration expressed such
fury about.
The national security provisions of the citizenship laws were the
only ones that could have been used to deny Zundel his citizenship
and they were so used in a discriminatory, abusive and reprehensible
manner.
Exhaustion of local remedies in Canada
Zundel has attempted to engage the courts in a review of his
detention, but has been unsuccessful for two years.
Zundel brought an application before the Ontario Superior Court of
Justice for a writ of habeas corpus with certiorari in aid together
with a challenge to the constitutional validity of the Immigration
and Refugee Protection Act. On November 23, 2003, the Superior Court
refused to hear the application on the grounds that, although it had
jurisdiction over the matter, any constitutional arguments should be
made to the Federal Court of Canada.
Zundel appealed this decision but it was dismissed by the Ontario
Court of Appeal on May 19, 2004. Although the court acknowledged that
it had sole authority to grant the writ of habeas corpus, it refused
to exercise this authority on the ground that it had not been proven
that the procedure before the Federal Court of Canada was
inappropriate or less advantageous. (R. v. Zundel, [2004] O.J. No.
2087 (Ont. C.A.); Application for leave to appeal to the Supreme
Court of Canada dismissed at R. v. Zundel [2004] S.C.C.A. No. 316)
In doing so, the Canadian courts ignored the clear guarantee to
habeas corpus in section 10 of the Canadian Charter of Rights and
Freedoms which provides:
"Everyone has the right on arrest or detention
(c) to have the validity of the detention determined by way of habeas
corpus and to be released if the detention is not lawful."
Zundel has now commenced a proceeding in the Federal Court of Canada
to challenge his detention and the constitutionality of the
legislation. This case could take up to five years to be heard.
Zundel is not entitled under the Immigration and Refugee Protection
Act to any review or appeal of the decision of Justice Pierre Blais
refusing him release on bail. Only Justice Blais has the power to
review his own decision.
Nor is Zundel entitled to any right of appeal regarding evidentiary
rulings by Justice Blais. (Zundel v. The Queen (2004), 238 D.L.R.
(4th) 498 (Fed. C.A.); Application for leave to appeal to the Supreme
Court of Canada dismissed with costs on September 30, 2004).
Zundel has brought several motions to Justice Blais to have the judge
recuse himself on the grounds of reasonable apprehension of bias.
Justice Blais has refused to grant any of these motions. Zundel has
appealed the refusal of Justice Blais to recuse himself to the
Federal Court of Appeal. This appeal was dismissed at [2004] FCJ No.
1982 on November 23, 2004.
Zundel states that the rule on exhaustion of domestic remedies does
not apply because, as stipulated in article 5, paragraph 2b of the
Optional Protocol:
"This shall not be the rule where the application of the remedies is
unreasonably prolonged."
In this case, the designated judge hearing the case did not determine
the bail issue for almost a year after Zundel had been imprisoned. He
has subsequently refused bail to Zundel notwithstanding the fact
there is no evidence that he is personally violent or has been
involved in violence.
Zundel will remain in detention until he is deported or until the
government releases him. There is no guarantee that even if the
security certificate is found to be unreasonable that the government
will release him. He will be detained under the other provisions of
the Act under which he was initially detained in February of 2003.
While the person named in a certificate found to be reasonable has no
appeal or review rights, if a certificate is quashed as being
unreasonable, the Crown may (and has in the past) issued a new
certificate and started the entire process again. (See Jaballah v.
Canada [1999] F.C.J. No. 1681 (T.D.) and Jaballah, Re [2003] F.C.J.
No. 822 (T.D.).
The detention of Zundel is therefore unlimited.
Inter American Commission on Human Rights:
Mr. Zundel has not submitted his case simultaneously to the Inter
American Commission on Human Rights.
Further Materials:
Mr. Zundel is prepared to provide additional information and
documentation on any aspect of this submission.
He includes with this complaint copies of decisions made in the case
by Mr. Justice Blais, the Federal Court of Canada and the Ontario
Superior Courts, relevant legislation and copies of some media
editorials and commentaries which have appeared in Canadian
newspapers.
Submitted by:
______________________
Barbara Kulaszka
Solicitor for the Complainant
Attachment converted: Macintosh HD:UN Detention Application.doc
(WDBN/MSWD) (00085631)
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