Thanksgiving in Jail

On Wednesday, the final day in this round of Revisionist publisher Ernst Zündel’s detention hearing before Mr. Justice Pierre Blais, Donald MacIntosh, the Crown Attorney, talked out the clock, ensuring that Mr. Zündel will remain in prison for another 13 weeks until the hearings resume for three days on December 10 [2003].

Hour after hour, MacIntosh picked away at Mr. Zündel with an ever more obscure series of questions about people he might have interviewed at some time or known slightly. Allegations, often from hostile Jewish sources and sometimes third- and fourth-hand hearsay, were put to him for his agreement or comment.

Political prisoner Ernst Zündel arrived in court with five plainclothes guards. Two sat near him beyond the barrier separating the court officials and lawyers from the spectators; three more sat among the spectators or stood along the walls.

While the lawyers toted their piles of legal volumes on suitcase-like carts with wheels, Mr. Zündel had to haul his legal papers in two white pillow-cases.

The day opened with a testy exchange between defence lawyer Douglas H. Christie and the judge. The judge expressed unhappiness that Mr. Christie had had a number of meetings with Mr. Zündel while he was under cross-examination. On July 30, it had been agreed that Mr. Christie could phone or visit Mr. Zündel to get instructions or to discuss other aspects of the case, provided he did not discuss Mr. Zündel’s evidence.

“I didn’t hear a caveat that each and every time I wish to talk to my client I must inform or ask the Court,” Mr. Christie snapped. When agitated, the judge pronounces “asked” with an aspirate: thus, “hasked”. At the end of the exchange, it was agreed that Mr. Christie could continue to consult with Mr. Zündel as long as he is under cross-examination – at least until December 10 – provided he does not discuss his evidence or coach his responses.

Then Crown Attorney MacIntosh commenced a long and laborious series of questions about Tom Metzger. Hovering, crow-like in his black robe, his nose an inch or two above the document on the podium, MacIntosh would spend long minutes searching for a quotation. More time would be wasted each time the judge and Mr. Christie, with Mr. Zündel on the witness stand, had to locate the often unnumbered page being referenced. After each answer, Mr. MacIntosh would painstakingly make notes of the answer, despite the fact that he had three legal assistants backing him up. It was a classic time-waster, like a veteran hockey player who hogs the puck while his team is ahead to run out the clock.

In the fishing expedition about Tom Metzger, Mr. MacIntosh quoted from an author named Kaplan, who wrote The Encyclopedia of White Power, and quoted Morris Dees quoting Harold Covington’s brief quotation of something Tom Metzger allegedly said. An angry Douglas Christie objected:

MacIntosh argued:

Then, in a remarkable one liner indicating how slight the Crown’s burden of proof is, he reminded Mr. Justice Blais:

The whole sinister process then became clear as a mountain pool. CSIS’s case is a wild series of guilt-by-associations. Mr. Zündel knows or knew a series of people, some of whom at some time or other may have made an extreme statement, or are alleged to have done so. Under questioning, he admits he knew these people. Often, he is called on to acknowledge that he disagrees with a statement he never knew they’d made or to acknowledge that, if they did or advocated what a third party says they did or advocated, they might be considered a terrorist. Then, with this record, the Crown will argue that the CSIS accusation that Mr. Zündel is a terrorist is “reasonable” – even if it isn’t true. After all, he admits knowing all these extreme people. Once again, truth will be no defence.

Outside the Court, Mr. Christie said:

This is Canada. Canada ostensibly does not have capital punishment. However, it condemns a man who is seriously ill to solitary confinement and denies him proper herbal medication, where the reasonable likelihood of the State’s action is the prisoner’s death or incapacity.

In answering Mr. Christie’s objection, Mr. Justice Blais was a study in apparent fairness and convoluted expression.

So far, so good. Then, with a verbal pirouette, the Judge said that, as these documents were before the Court, the interrogation could continue, and Mr. MacIntosh was off again.

When questioned on passages from the book The Encyclopedia of White Power, Mr. Zündel said:

In the morning session, a Globe and Mail reporter complained to both the Crown and Mr. Christie that his tape recorder had been confiscated by the Court security guards. After the break, Mr. Christie argued:

No, said Mr. Justice Blais:

A casual observer might have concluded that Tom Metzger was on trial in Courtroom 1 in Toronto on September 24. Mr. Zündel was asked if he knew of a publication called White Berets, published by a branch of the Ku Klux Klan. Mr. Zündel said he didn’t know the publication, but was sent some Klan literature from time to time by supporters. “You never asked anyone not to send you Klu[sic] Klux Klan literature!” Mr. MacIntosh said triumphantly, as if he’d scored a knock out point.

Douglas Christie leaped to his feet objecting:

Now, Mr. Justice Blais admonished Mr. Christie for objecting so often:

He then ruled:

In the afternoon, the Crown played a portion of a video entitled Hearts of Hate produced with buckloads of Canadian taxpayers’ money. The video seemed to show Ernst Zündel singing “Happy Birthday” in a pub on the occasion of the birthday of Toronto skinhead Chris Newhook. Mr. Zündel had earlier testified that he could not recall singing “Happy Birthday” on that evening almost a decade ago.

Douglas Christie objected:

Although he permitted showing of the propaganda video, it was too much even for Mr. Justice Blais:

Then Mr. Zündel was questioned about Church of the Creator founder Ben Klassen, whom he had never met and didn’t know, and his alleged sale of property to William Pierce. Again Mr. Christie objected:

The later part of the afternoon was taken up with setting the agenda for the next round of hearings to be held December 10-12. Mr. MacIntosh said he would need another hour and a half to complete his cross-examination. Both lawyers will prepare written submissions as to whether Mr. Justice Blais has jurisdiction to decide Mr. Christie’s constitutional challenge to the Immigration and Refugee Protection Act, particularly the sections surrounding the CSIS certificate, which allow no appeal of the judge’s decision and which permit secret hearings. The jurisdictional question will be argued. If the judge decides he has jurisdiction, the constitutional question will be argued. Both parties are preparing written submissions on this point as well. Finally, Mr. Zündel’s detention will be argued.

Optimists feel there’s a chance Mr. Zündel will be free for Christmas. Despite the incarceration, which will be 10 months come December, Mr. Justice Blais said:

Later that night, speaking to the Alternative Forum in Toronto, Mr. Christie praised those loyal 25-30 people who had filled the courtroom each day in support of the dissident publisher. Mr. Christie said: