[ql06] CONSTITUTION: Zundel Argues Charter Rights Violated
- From: Stephen Kennedy <2srk@xxxxxxxxxxxxxxxx>
- To: ql06@xxxxxxxxxxxxx
- Date: Wed, 19 Nov 2003 12:19:42 -0500
Here we go. . .
As expected, Ernst Zundel's lawyer is challenging the security certificate=
=20
the government is using to keep him in jail. He's also challenging the=20
Immigration and Refugee Protection Act on what look to be Charter s. 7=20
grounds. The crown is countering with procedural stalling, arguing Zundel's=
=20
in the wrong court.
This looks like it's going to heat up!
Wednesday =BB November 19 =BB 2003
Release jailed Holocaust-denier Zundel, charter rights violated: lawyer says
NANCY CARR
Canadian Press
Tuesday, November 18, 2003
TORONTO (CP) - A defence lawyer for Holocaust-denier Ernst Zundel asked a=20
judge Tuesday for the German citizen's immediate release because his=20
detention violates the Charter of Rights and Freedoms.
Zundel, who has no criminal record in Canada and is not facing any charges,=
=20
has been in solitary confinement since February after being deported to=20
Canada for overstaying a visitor's visa in the United States. He is being=20
held in jail on a security certificate while the courts determine, in a=20
separate proceeding, whether he is a security risk to Canada and should be=
=20
deported to Germany.
"This man, who has been a resident in Canada without committing a crime,=20
has been certified as being a danger to Canada," defence lawyer Peter=20
Lindsay said Tuesday morning in the Superior Court of Justice.
"In Germany, he will likely be jailed for Holocaust denials despite being=20
exonerated by Canadian courts."
Lindsay argued that the 2001 Immigration and Refugee Protection Act, under=
=20
which Zundel is being held, is unconstitutional because, among other=20
reasons, it denies the detainee an appeal and allows for "secret=20
proceedings" between the Crown and a judge.
Zundel, 64, dressed in blue pants and a green suede jacket, acknowledged=20
his supporters as they filed into court, but he did not address the court=20
Tuesday. Judge Mary Lou Benotto allowed Zundel, once unhandcuffed, to sit=20
at a desk behind his lawyer rather than in the prisoner's box so that he=20
and Lindsay could confer.
Lindsay referred to his client as "an unpopular man, even a notorious man."
"The reason for that is essentially he has denied the Holocaust," Lindsay=20
said.
The proceeding - called an application for a writ of habeas corpus - is=20
what Lindsay described as an "extreme remedy" used to protect a person who=
=20
is unlawfully confined. It was expected to take no more than two days,=20
after which Zundel could be released from jail.
Crown attorney Douglas MacIntosh, however, said Superior Court was not the=
=20
place to hear Zundel's case because Parliament has indicated in the past=20
that Federal Court is where immigration issues should be heard.
He asked that Benotto stay the request for Zundel's release, arguing that=20
the ongoing proceedings under Federal Court Judge Pierre Blais would=20
eventually yield a decision.
"Parliament has contemplated that the Federal Court of Canada has exclusive=
=20
jurisdiction over security cases," MacIntosh told Benotto.
"This court would be singularly at a disadvantage in evaluating the various=
=20
considerations Parliament has taken into account in drafting this=20
legislation."
MacIntosh also stressed that as a permanent resident, Zundel does not have=
=20
the same rights as Canadian citizens.
"The most fundamental principle of justice in the immigration context is=20
non-citizens don't have the unqualified right to enter or remain in=20
Canada," MacIntosh said.
He added that the delay in Zundel's case was largely because one of his=20
defence lawyers, Doug Christie, has had a full schedule and has been too=20
busy to appear in court.
If Zundel is not released after Benotto makes her ruling, the detention=20
review which is trying to determine whether he is a risk to Canadian=20
security is scheduled to resume in Federal Court on Dec. 10. The review has=
=20
been proceeding for more than six months. The length of that proceeding is=
=20
another reason why Zundel's detention is unconstitutional, Lindsay said.
When he was jailed in February, Zundel applied for refugee status in=20
Canada. He was denied release by the Immigration and Refugee Board three=20
times before Ottawa suspended the application May 2, one day after the=20
security certificate was issued.
Zundel, who has lived in Canada since 1958, fled to Tennessee to be with=20
his wife before a January 2002 ruling by the Canadian Human Rights=20
Commission that a website he controls spreads anti-Semitic messages.
He remains in solitary confinement at Toronto's Metro West Detention Centre.
Lindsay was scheduled to respond to the Crown's arguments Wednesday. It was=
=20
not known when Benotto would render a decision.
=A9 Copyright 2003 The Canadian Press
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