Writer fights Zundel subpoena

Author, judge object to taking stand at Holocaust denier's deportation hearing


UPDATED AT 10:24 PM EDT Thursday, May. 6, 2004


A Federal Court of Canada judge showed no sympathy yesterday for an author fighting to stay off the witness stand at Holocaust-denier Ernst Zundel's deportation hearing.

Mr. Justice Pierre Blais said that author Andrew Mitrovica should be prepared to account for splashy allegations of wrongdoing in his recent book, Covert Entry, on the Canadian Security Intelligence Services.

"He seems to not care about national security," Judge Blais observed sternly, waving a copy of the book. "He seems to care more about selling books."

Lawyers for Mr. Zundel are hoping to use Mr. Mitrovica's testimony to shake the general credibility of CSIS. They are particularly eager to question him about a 1995 incident in which CSIS allegedly knew a pipe bomb was being sent to Mr. Zundel through the mail, yet failed to warn him.

"It is appropriate that I should be able to challenge the most important witness against Mr. Zundel -- and the most important witness is CSIS," lawyer Peter Lindsay said yesterday. "If we don't hear from Mr. Mitrovica, we simply are not going to get to the bottom of these matters."

CSIS provided information which Judge Blais has heard in secret sessions, and which purportedly shows Mr. Zundel to be a national security risk. The Zundel defence team is not privy to the information, yet it must still convince Judge Blais that it is unreliable. Should it fail, Mr. Zundel will be deported to Germany to face a five-year prison term for the crime of denying the Holocaust.

Mr. Mitrovica's lawyer, Brian Rogers, argued yesterday that writers are mere conduits for information whose work ought to stand for itself. He said Mr. Mitrovica's plight goes to the heart of press freedom and represents the latest in a chain of cases that have chilled writers and journalists.

"This is an issue that is very important, very broad, and will no doubt go to the Supreme Court of Canada in due course," Mr. Rogers said. He said that Mr. Mitrovica's sweeping subpoena demands virtually every piece of paper in his possession pertaining to CSIS.

"If they get their way and he is called [to testify] . . . this will be a one-person commission of inquiry into CSIS," Mr. Rogers said. He argued that Mr. Lindsay ought to have subpoenaed the CSIS agents quoted in Mr. Mitrovica's book, rather than pursuing someone who merely published their "hearsay" accounts.

"Mr. Lindsay should be going after the horses, not Mr. Mitrovica; the farmer who is guarding the barn door," Mr. Rogers said. "He is the wrong guy."

Judge Blais, a former federal solicitor-general, said he found it surprising that Mr. Mitrovica would try to shield himself in a cloak of journalistic immunity instead of wanting to help ensure that potentially illegal acts are dealt with properly.

The judge reserved his ruling on four separate attempts to quash defence subpoenas. Besides Mr. Mitrovica, others hoping to avoid testifying are Ontario Court Judge Lauren Marshall, a former lawyer of Mr. Zundel's; Canadian Jewish Congress President Keith Landy, and Frank Dimant, executive vice-president of B'nai Brith Canada.

After initially agreeing to respond to her subpoena, Judge Marshall sent a lawyer on Tuesday to fight it. Her lawyer, Paul Stern, told Judge Blais yesterday that anything his client could say is either irrelevant or improper.

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