ZGram - 5/5/2004 - "Quash that subpoena!"

zgrams at zgrams.zundelsite.org zgrams at zgrams.zundelsite.org
Wed May 5 06:34:37 EDT 2004

  Zgram - Where Truth is Destiny:  Now more than ever!

April 5, 2004

Good Morning from the Zundelsite:

It seems that I am falling more and more behind in doing my daily 
Zgrams.  I will not even apologize any more except to say that I am 
doing the work of four full-time people of the former Toronto 
Zundel-Haus, in addition to Ernst's and my own.  There is only so 
much I can manage - and let me say here that I don't appreciate the 
"friendly fire" sniping from the sidelines.  Can't our fence sitters 
and Monday morning quarterbackers find nothing more useful to do?

When I talked to Ernst last night, he said:  "The pipe bomb issue is 
now squarely on the table, and they [the opposition] will have to 
deal with it." Amazing to observe that, even out of prison, Ernst has 
succeeded in another jiu jitsu (sp?) and has turned the tables deftly 
on the Canadian Jews. 

Ernst said that, yesterday, there were 10 (!) lawyers in the 
courtroom!  Who was that that claimed not all that long ago that Mr. 
Zundel was so "insignificant" he couldn't fill a phone booth with 

I am sending you the latest, and then I will work backwards and fill 
you in on previous materials I culled as worthy of Zgrams.  Paul 
Fromm of the Canadian Association of Free Expression, our unofficial 
court reporter par excellence, below:


Quash That Subpoena

  TORONTO. Tuesday, May 4, 2004. In my last CAFEGRAM entitled "Watch 
for Fireworks in the Zundel Case", I promised you excitement at the 
Zundel hearings before Mr. Justice Pierre Blais in Toronto. We had 
plenty of excitement and tension. Indeed, as I approached the 
courtroom, I learned that the drama and skullduggery had already 

  	Judge Lauren Marshall, who had confirmed orally her 
willingness to testify for Ernst Zundel, was backing out. Her 
testimony, as Mr. Zundel's lawyer in the mid-1980s, is crucial. She 
can explain the incredible haste with which the usually snail-like 
immigration department moved to commence deportation proceedings 
against Mr. Zundel after his "false news" conviction. It was clear 
then, and it should be clear now, that Mr. Zundel is the victim of 
political persecution. He's a political problem for Canada's 
minority-run Liberal regime, not a threat to national security.

  	In a written statement, Mr. Zundel's lead defence attorney, 
Peter Lindsay, said: "My Lord, there was been a significant change in 
circumstances in this matter. I had indicated to Your Lordship on 
Thursday (April 29) that Regional Senior Justice Marhall would 
testify this morning. I based that on two direct personal discussions 
between myself and Justice Marshall in which her Honour had 
specifically and unequivocally agreed to testify in this matter and 
we had fully discussed the subjects to be covered in her testimony. I 
had also served a subpoena on Her Honour, but that subpoena was only 
served after Her Honour had already told me personally that she was 
willing to testify and would testify in this matter. Yesterday 
morning I spoke to Her Honour by telephone and confirmed arrangements 
to meet her this morning at this courthouse prior to her testimony. 
At about 4:00 p.m. yesterday, I received a telephone call from her 
new lawyer, Mr. Stern, who was suddenly acting on behalf of Her 
Honour. Now, through Mr. Stern, Her Honour has, despite her earlier 
agreement to testify, brought a motion before Your Lordship, in 
relation to testifying in this matter, and Her Honour is not present 
in Court this morning."

  	Why had Judge Marshall suddenly developed a case of cold feet 
and was seeking to quash the subpoena? The idealists suggest that the 
lady had simply changed her mind. The cynics counter that "the big 
boys" got to her. In her earlier days, as Mr. Zundel's lawyer, she'd 
received terrifying phone calls threatening the lives of her children 
if she continued to act for Canada's most famous dissident.

  	Judge Marshall was not the only person who'd developed a case 
of shyness. Just before court opened, Mr. Lindsay informed me of the 
weird antics of John Farrell, the former thief whom CSIS had employed 
in the mid-1990s to surreptitiously open the mail of dissidents, 
including Ernst Zundel. It was Farrell's information that largely 
formed the basis of Andrew Mitrovica's book about CSIS -- Covert 
Entry: Spies, Lies and Crimes Inside Canada's Secret Service.

  	Farrell, the former thief and mail snoop, is now a teacher of 
religion at a West Toronto Catholic High School. [Yes, I know, not 
since Mary Magdalen ...] Peter Lindsay and his law clerk went to his 
school to serve the elusive Mr. Farrell with a subpoena. They talked 
to his principal. The principal advised them that Mr. Farrell was 
away that day. Out in the parking lot, they encountered a teacher and 
told them their business. "Oh," he said, "I just saw Mr. Farrell in 
the library." Using this helpful information, they re-entered the 
school and, indeed, found Farrell in deep discussion with the 
less-than-truthful principal of the Catholic High School. The 
principal charged at Mr. Lindsay and assaulted him, permitting Mr. 
Farrell to flee the premises. Mr. Lindsay called the police. The 
principal stoutly denied ever assaulting Mr. Lindsay.

  	As a former teacher who was twice served with legal papers at 
school, I find this incident extraordinary. Most school 
administrators have a very acute sense of deference to authority and 
the law and would usually be only too happy to accommodate a process 

  	Today, Judge Blais seemed to accept defeat on what appeared 
to be the plan to rush the case through by tomorrow. Last week, with 
hearings lasting until after 8:00 p.m., every effort had been made to 
rush Mr. Zundel to judgement and, likely, deportation. Mr. Blais is 
now talking of arranging more court dates as far ahead as possibly 
December of this year. He is also talking of Mr. Zundel's next 
mandatory detention review in late July.

  	Court proceedings were dominated by submissions from a 
growing list of people who don't want to testify. The Crown side of 
the court is becoming over-crowded. It looked like the old days of 
the Zundel Internet case before the Canadian Human Rights Tribunal, 
with guest appearances by lawyers Marvin Kurz and Judy Chan, acting 
for Frank Dimant of the League for Human Rights of B'nai Brith and 
Keith Landy of  the Canadian Jewish Congress, respectively. Their 
normally publicity seeking clients had developed a sudden case of 
shyness when subpoenaed to testify in the Zundel case. They were also 
joined by Paul Stern, representing Madam Justice Marshall and, late 
for the second day in a row, a Mr. Rogers, acting on behalf of author 
Andrew Mitrovica who also wanted no part of testifying.  

  	Crown Attorney Donald MacIntosh led off arguing that the 
subpoenas against Dimant, Landy and Mitrovica should be quashed. "Mr. 
Lindsay advanced the proposition that the security certificate was 
signed by the Minister of Citizenship and Immigration and the 
Solicitor-General because of pressure by the Canadian Jewish 
Congress, B'nai Brith and others. There isn't a scintilla of 
evidence. This is a fishing expedition. Evidence of intent or 
knowledge of the minister is not relevant. It's not what Mr. Dimant 
said to a minister as to whether the certificate is reasonable."

  	Last week, Mr. Justice Blais was so brutal to lead defence 
counsel Peter Lindsay that he, at one point, apologized. Today, his 
mood had changed and he repeatedly challenged the Crown lawyers and 
the lawyers seeking to quash the subpoenas.

  	"Why can you not go to the question of the information that 
is provided to the ministers by various sources?" he asked Mr. 
MacIntosh. "Can we not question the evidence provided to the decision 

  	MacIntosh continued: "My friend supposes because various 
esteemed members of the Jewish community made representations."

  	"And met with the ministers. I think there were meetings,": 
Mr. Justice Blais interrupted him. The Act is clear. Section 78.j 
says: 'The judge may receive into evidence anything he thinks may be 
relevant, even if it is not admissible in a court of law.' The 
ministers were provided with hearsay evidence. We don't know whether 
witnesses provided evidence to the ministers."

  	On another occasion, Judge Blais interrupted Mr. MacIntosh 
who was mocking Mr. Lindsay's concern about actions of ministers of 
immigration in the 1980s. "People in glass houses," Mr. Justice Blais 
remarked, reminding him that the Crown and CSIS had brought in 
newspaper clippings that were 23 years old as part of their case 
against the German publisher.

  	Mr. MacIntosh, becoming increasingly testy and strident, 
doggedly pushed the notion that B'nai Brith and the Canadian Jewish 
Congress merely exercised their free speech rights to make 
representations to cabinet ministers, just as anybody else might do. 
Readers who wait six months to get even an acknowledgement of a 
letter to a cabinet minister might differ with Mr. MacIntosh. "B'nai 
Brith has no more special access to the minister than any other 
organization making urgent representations." He, then, went on to 
advance the amazing view that having to testify about their lobbying 
might intimidate groups like the CJC and B'nai Brith. "If individuals 
who made representations to ministers are subpoenaed, it will inhibit 
the expression of their views."

  	In July, Mr. Justice Blais had dismissed Covert Entry as a 
"novel." He now seemed to be taking it and the allegations that CSIS 
knew the May, 1995 pipe bomb was coming to Mr. Zundel very seriously. 
"We have some pieces that are missing. There is still opportunity for 
both sides to provide information on these matters, especially the 
strong allegation that CSIS knew of the pipe bomb sent to Mr. Zundel"

  	In the afternoon, both Judy Chan and Marvin Kurz argued that 
their clients shouldn't be subpoenaed. While the CJC posts pictures 
of prominent CJC officers grinning in meeting with cabinet ministers, 
Miss Chan invited the court to conclude that these meetings were 
nothing special. "His meeting with the minister doesn't prove Mr. 
Landy has any relevant evidence to give. This is a fishing 
expedition. It is an inappropriate use of a subpoena and it could be 
used to embarrass or harass my clients."

  	The ever voluble Mr. Kurz took the better part of an hour to 
urge Judge Blais to quash the subpoena as Mr. Dimant's testifying 
would only aid Mr. Zundel is establishing that there is "an 
international Jewish conspiracy" against him:

"Frank Dimant has no evidence to offer which is relevant in this 
case, particularly as to whether Mr. Zundel is a security risk." Kurz 
set up the straw man of an international Jewish conspiracy, which Mr. 
Lindsay had never mentioned, and then proceeded to flail away at it. 
"The argument of an international Jewish conspiracy is an abuse of 
process," he said.

  	"The defence's theory is that the government and Jewish 
groups worked together to get rid of Mr. Zundel. I didn't hear the 
word 'international'," Judge Blais interjected. "Whether Jewish 
groups intervened in the process could be relevant," he added.

  	"There's a great deal of evidence that Mr. Dimant and B'nai 
Brith and the Canadian Jewish Congress and Mr. [Bernie] Farber are 
very opposed to Mr. Zundel and his views. There's nothing secret 
there," Mr. Kurz persisted. "Both organizations have intervened in 
Mr. Zundel's court cases. Mr. Zundel would have you believe there's 
something improper about that. Mr. Lindsay would have you believe 
that Jews exercizing their Charter rights are doing something wrong."

  	If the arguments of MacIntosh, Chan and Kurz limped, the 
submissions of Mr. Rogers, representing Andrew Mitrovica, were 
positively lame.

  	"Mr. Mitrovica has been subpoenaed simply because he's the 
author of a book in pursuit of his craft as an investigative 
journalist. He's not an expert. He does not want to appear in any 
sense to be supporting Mr. Zundel. He has no material evidence. The 
book speaks for itself."

  	An incredulous Judge Blais interrupted: "Even though he made 
strong allegations in the book? He made all those allegations about 
CSIS without material evidence? He made strong allegations that CSIS 
was involved in sending a pipe bomb to Mr. Zundel."

  	Mr. Rogers answered: "He is merely a conduit." He pronounced 
it "con-doo-it." "He is merely reporting what others told him."

  	Again Judge Blais interrupted: "The kind of allegations he 
made, how substantiated were they?"

  	Rogers responded: "He wrote a book for the world to see. He 
had no involvement in the pipe bomb. He does not have any direct 

  	"So who does know?" Mr. Justice Blais demanded. "Mr. 
Mitrovica knows if information is corroborated. ... We're talking of 
allegations of a serious crime -- the issue of someone letting a pipe 
bomb go to Mr. Zundel and did nothing. In the book, Mr. Mitrovica 
concludes: 'CSIS is riddled by waste, incompetence, nepotism and law 
breaking.' Mr. Mitrovica seems to be quoting CSIS employees in 
violation of Sec. 18 of the CSIS Act. Making public that kind of 
information is against the law. He cares more about selling books."

  	"The book speaks for itself," M. Rogers repeated. "Mr. 
Mitrovica's evidence is not relevant."

  	"We don't know that. We haven't heard from Mr. Mitrovica," 
Judge Blais retorted.

  	The hearing continues tomorrow. -- Paul Fromm



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