Date: 20040922
Docket: DES-2-03
Citation: 2004 FC 1295
Ottawa, Ontario, September 22, 2004
Present: The Honourable Mr. Justice Blais
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 of the
Federal Court of Canada pursuant to subsection 77(1),
sections 78 and 80 of the Act;
AND IN THE MATTER OF ERNST ZÜNDEL
REASONS FOR ORDER AND ORDER
[1] Pursuant to subsections 83(2) and 83(3) of the Act, the Court has to review whether Mr. Zündel's detention should be continued.
[2] From May 1, 2003 to January 21, 2004, the Court has heard evidence provided by the Ministers in public and also in camera, and evidence provided in public by Mr. Zündel.
[3] After assessing that evidence, on January 21, 2004, the Court has rendered a decision to the effect that Mr. Zündel's detention should be continued.
[4] Pursuant to subsection 83(2) of the Act, after 6 months, the Court has the duty to reexamine whether the detention of Mr. Zündel should continue.
[5] Under subsection 83(3), the Court should decide that the detention continues if the Ministers provide evidence that there are reasonable grounds to believe that Mr. Zündel continues to be a danger to national security or to the safety of any person, or, that Mr. Zündel is unlikely to appear at proceedings for removal. As Mr. Lindsay, counsel for Mr. Zündel, suggested, the real question is "What has changed since then?".
[6] After discussions between the parties, this Spring, it was decided that Mr. David Stewart, who is an employee of CSIS, could testify on the material that was filed by the Ministers.
[7] It was understood at the very beginning that Mr. Stewart will testify on unclassified material and that all questions asked to Mr. Stewart by counsel for Mr. Zündel or by counsel for the Ministers would address only the unclassified material.
[8] Referring to the transcript of those 7 days, the Court had to intervene often to make sure that no question would be addressed to the witness that could inadvertently disclose some classified information which would be injurious to national security.
[9] Counsel for Mr. Zündel and his predecessor suggested many times that different witnesses would testify. At the last minute, counsel for Mr. Zündel decided not to bring those witnesses to testify.
[10] The witnesses which counsel for Mr. Zündel wanted to bring forward to testify included a former counsel for Mr. Zündel, who is now a judge of the Ontario Superior Court of Justice, the leader of the Canadian Jewish Congress, a leader of B'Nai Brith Canada, an author and a journalist for the Globe and Mail. All those subpoenas were quashed after a hearing and are the subject of another decision rendered on June 23, 2004.
[11] In my decision of January 21, 2004, I indicated that Mr. Zündel did not provide evidence of his real relationship with the individuals and the organizations that are mentioned in the summary that was provided to Mr. Zündel in May 2003.
[12] Mr. Zündel decided not to address those issues and not to clarify his relationship with those individuals and organizations. Mr. Zündel decided to demonstrate that he is more or less a victim of a vendetta by CSIS against him, and tried by different allegations to demonstrate that CSIS has a strong bias against him and is determined to deport Mr. Zündel at any price.
[13] Counsel for Mr. Zündel raised an issue regarding the disclosure of such information that would be injurious to national security. On two occasions, I said "could be injurious to national security" when I should have said "would be injurious to national security". In fact, the remark by Mr. Lindsay was right. Nevertheless, there was no prejudice because when I made that particular finding, I always had in mind that the classified information and evidence that were provided in camera by the Ministers are confidential and that disclosure of any part of that evidence would be injurious to national security. Obviously, the wording is important; nevertheless, what is imperative is that the designated judge has the duty to make sure that any classified information is not going to be made public if its disclosure would be injurious to national security, referring to section 78 of the Act.
[14] If Mr. Lindsay is right when he says that I have made a mistake once or twice in using the word "could", he is wrong when he says that I applied the wrong test, because in fact, I have applied the right test and I have reviewed periodically the evidence that was received in camera to make sure that if it was possible, I would have disclosed part of it to Mr. Zündel, pursuant to the Act. Nevertheless, my review of the information and evidence provided in camera by the Ministers led me to conclude that this classified material is relevant but that its disclosure would be injurious to national security or to the safety of any person.
[15] Counsel for Mr. Zündel spent a lot of time in his oral representations identifying some technical errors that could have been made during the long process. In my view, the time would have been better spent providing evidence to demonstrate the real relationship between Mr. Zündel and the individuals and organizations that were identified in the summary. Counsel for Mr. Zündel also spent a lot of time trying to demonstrate the interest of the Court in hearing about the influence of the Canadian Jewish organizations and the pressures that those organizations put on the Ministers at different moments, pressures which culminate to the issuance of the certificate.
[16] As I stated in a previous decision, it is no secret that the Canadian Jewish organizations placed a lot of pressure on ministers and different levels of government, insisting that different measures should be taken against Mr. Zündel; for example the Canadian Jewish organizations exerted a lot of pressure to ensure that the Canadian government would not allow Mr. Zündel to reenter the country from the United States. In fact, they did not succeed.
[17] The pressures that were placed on the federal government and particularly the Ministers issuing the certificate are well-known and were made in public.
[18] In fact, the question that has to be addressed is not whether there was pressure, but rather, whether the certificate issued by the Ministers is reasonable.
[19] We are not there yet. The hearing on the reasonableness of the certificate is still ongoing. Nevertheless, I have a duty to reexamine whether the detention should continue.
[20] Finally, counsel for Mr. Zündel suggests that the evidence that is provided in camera about Mr. Zündel creates an unbalanced position and an untenable position to respond.
[21] Mr. Lindsay suggests that he should be allowed to ask questions about the secret evidence which is classified information, and if answers are provided to those questions, it would be easier for him to adequately represent his client.
[22] In fact, Mr. Lindsay suggests that unless he gets some answers to those questions, it will be very difficult if not impossible for him to make meaningful submissions about the reasonableness of the certificate, and on the "issue of detention". Mr. Lindsay decided to read those questions in making his own representations and I can assure Mr. Lindsay right now that those questions will be taken into consideration when the Court hears counsel for the Ministers in camera.
[23] The Federal Court of Appeal has explained the burden of proof on the review of detention in M.C.I. v. Thanabalasingham, [2004] F.C.J. No. 15, 2004 FCA 4:
The onus is always on the Minister to demonstrate there are reasons which warrant detention or continued detention. However, once the Minister has made out a prima facie case for continued detention, the individual must lead some evidence or risk continued detention.
[24] On behalf of the Ministers, Mr. MacIntosh rightly suggests that the Ministers have met their burden: the Ministers have to demonstrate that there are reasonable grounds as to why Mr. Zündel should continue to remain in detention pursuant to section 83 of the Act.
[25] The role of the designated judge reviewing the reasons for continued detention is described by Justice Noël in Charkaoui, [2004] 1 F.C.R. 528, [2003] F.C.J. No. 1119, 2003 FC 882, paragraph 36 (tab 4, the Ministers Book of Authorities):
The designated judge, at the stage of reviewing the reasons for the arrest warrant and the continued [page 544] detention, must ask himself whether there is any evidence in support of the Ministers' position that the respondent, since the beginning of his detention, remains a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal (see subsection 83(3) of the Act). I note that Parliament has used the word "or", which created an alternative between one of the reasons cited. Moreover, the designated judge, having given the respondent an opportunity to be heard, must ask himself whether the evidence presented by the respondent challenges the evidence in support of continued detention, if any. In doing so, he must consider all the evidence of the parties (including that presented in the absence of the respondent). The initial onus is therefore on the Ministers, although it may shift to the respondent if the Ministers' evidence is sufficient. Where applicable, the respondent must in turn satisfy the designated judge that the continued detention is not justified.
[26] Again, it is important to quote former Chief Justice Thurlow in Attorney General of Canada v. Jolly, [1975] F.C. 216 (C.A.), who has defined the standard of proof in immigration matters (Charkaoui decision, paragraph 38):
... where the fact to be ascertained on the evidence is whether there are reasonable grounds for such a belief, rather than the existence of the fact itself, it seems to me that to require proof of the fact itself and proceed to determine whether it has been established is to demand the proof of a different fact from that required to be ascertained. It seems to me that the use by the statute of the expression "reasonable grounds for believing" implies that the fact itself need not be established and that evidence which falls short of proving the subversive character of the organization will be sufficient if it is enough to show reasonable grounds for believing that the organization is one that advocates subversion by force, etc. In a close case the failure to observe this distinction and to resolve the precise [page 545] question dictated by the statutory wording can account for a difference in the result of an inquiry or an appeal.
[27] I would agree with counsel for the Ministers that even though counsel for Mr. Zündel has shown dissatisfaction with the disclosure of the evidence, Mr. Zündel has received adequate disclosure in this case. Mr. Zündel has received full disclosure consistent with section 78 of the Act. The disclosure was consistent with principles of natural justice and fairness. In fact, referring to paragraph 20 of my decision of January 21, 2004, I indicated that there was, at the time of that decision, reasonable grounds to believe that Mr. Zündel was a danger to national security or to the safety of any person. I based my findings, at the time, on the fact that although Mr. Zündel had virtually no history or direct personal engagement in acts of serious violence, his status within the Right Supremacist Movement was such, that adherents would be inspired to carry out his acts pursuant to his ideology. The Ministers believed that by his comportment as leader and ideologue, Mr. Zündel intended serious violence to be a consequence of his influence.
[28] In assessing carefully the evidence that was provided since that very decision of January 21, 2004, I have no hesitation to conclude that Mr. Zündel failed to provide evidence that there are no reasonable grounds to believe that he is a danger to national security or to the safety of any person.
[29] Being satisfied that Mr. Zündel should remain in detention because the Ministers have provided evidence that there are reasonable grounds to believe that he is a danger to national security or to the safety of any person, it will not be necessary to determine whether he is unlikely to appear at a proceeding or for removal. No new evidence was even provided by any party regarding this question.
O R D E R
Therefore, THIS COURT ORDERS that:
Mr. Zündel's detention be continued in accordance with subsection 83(3) of the Act until the designated judge again rules in regard of the continuation of the detention.
"Pierre Blais"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: DES-2-03
STYLE OF CAUSE: 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;
And in the matter of Ernst Zündel
PLACE OF HEARING: Toronto, Ontario
DATES OF HEARING: May 9, 16, 2003
July 28, 29, 30, 2003
September 23, 24, 2003
November 6, 7, 2003
December 10, 11, 2003
January 22, 23, 26, 27, 2004
February 9, 12, 18, 19, 2004
April 13, 14, 29, 30, 2004
May 4, 5, 2004
June 9, 2004
July 27, 2004
August 11, 2004
August 30, 31, 2004
Sept. 1, Sept. 2, 14, 16, 2004
REASONS FOR ORDER The Honourable Mr. Justice Blais
AND ORDER:
DATED: September 22, 2004
APPEARANCES:
Donald MacIntosh & Pamela Larmondin FOR THE MINISTER
Department of Justice
Toronto, Ontario
Murray Rodych & Toby Hoffman FOR THE
Canadian Security Intelligence Service SOLICITOR GENERAL
Legal Services
Ottawa, Ontario
Peter Lindsay & Chi-Kun Shi FOR RESPONDENT
Barristers and Solicitors
Toronto, Ontario