Date: 20030922
Docket: DES-2-03
Citation: 2003 FC 1089
IN THE MATTER OF a certificate signed pursuant to subsection
77(1) of the Immigration and Refugee Protection Act, S.C. 201, 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
BLAIS J.
[1] On May 1, 2003, the Minister of Citizenship and Immigration and the Solicitor General of Canada [the Ministers] signed a certificate stating that Ernst Christof Friedrich Zündel [Mr. Zündel], a permanent resident of Canada, is inadmissible on grounds of security. In my capacity as a designated judge pursuant to sections 76, 80(1) and 83(1) of the Immigration and Refugee Protection Act, I must determine if Mr. Zündel's detention should be continued and if the certificate is reasonable.
[2] The public hearing of this trial started in early May of 2003 and has been ongoing since.
BACKGROUND
[3] At the outset of the public hearing of July 30th, 2003, Mr. Zündel's counsel presented an oral motion for my recusal. He argued that I should not hear the application for release from detention nor for determination of the reasonableness of the certificate because I had previously made a general finding that Mr. Zündel lacked credibility: "... I have to rise, regrettably, to put before you an application for recusal on the grounds of reasonable apprehension of bias. ... It is my submission that your lordship has entered into the arena and displayed hostility to the accused. ..."
[4] Counsel for the two Ministers filed a Memorandum of Argument and counsel for Mr. Zündel chose not to respond to this Memorandum.
ISSUE
[5] Did my comments give rise to a reasonable apprehension of bias?
RELEVANT JURISPRUDENCE
[6] Over the years, a clear body of principles has been enunciated in the jurisprudence as to the concept of reasonable apprehension of bias.
[7] The following cases are an illustration of those principles.
[8] In the decision of Ahani v. Canada (Minister of Citizenship and Immigration), (1998) 159 F.T.R. 252, [1998] F.C.J. No. 1765 (aff'd (2000) 7 Imm. L.R. (3d) 1, [2000] F.C.J. No. 114), Denault J. confirmed the manner in which the test for reasonable apprehension of bias should be applied:
[para. 7] As held by the Supreme Court of Canada in R. v. S. (R.D.) [See Note 3 below], the manner in which the test for reasonable apprehension of bias should be applied was set out by de GrandpréJ., in dissent, in Committee for Justice and Liberty v. Canada (National Energy Board) [See Note 4 below]:
--------------------------------------------------------------------------------
Note 3: [1997] 3 S.C.R. 484
Note 4: [1978] 1 S.C.R. 369 at pp. 394-395
--------------------------------------------------------------------------------
... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information... [T]hat test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
The grounds for this apprehension must, however, be substantial and I.... refus[e] to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience".
[9] Another decision which deals specifically with the concept of reasonable apprehension of bias is that of R. v. R.D.S., [1997] 3 S.C.R. 484 [R.D.S.]. In that case, a white police officer arrested a black 15-year-old who had allegedly interfered with the arrest of another youth. The accused was charged with, inter alia, unlawfully assaulting a police officer. The police officer and the accused were the only witnesses and their accounts of the relevant events differed widely. The Youth Court judge weighed the evidence and determined that the accused should be acquitted. While delivering her reasons, the judge remarked that police officers had been known to mislead the court in the past, that they had been known to overreact particularly with non-white groups, and that this would indicate a questionable state of mind. She also testified that her comments were not tied to the police officer testifying before the court. This judgment was upheld by a majority of the Nova Scotia Court of Appeal. At issue before the Supreme Court of Canada was whether the Youth Court judge's comments in her reasons gave rise to a reasonable apprehension of bias. Cory J. held:
[para. 130] When making findings of credibility it is obviously preferable for a judge to avoid making any comment that might suggest that the determination of credibility is based on generalizations rather than on the specific demonstrations of truthfulness or untrustworthiness that have come from the particular witness during the trial. It is true that judges do not have to remain passive, or to divest themselves of all their experience which assists them in their judicial fact finding. See Brouillard v. The Queen, [1985] 1 S.C.R. 39; Commentaries on Judicial Conduct, supra, at p. 12. Yet judges have wide authority and their public utterances are closely scrutinized. Neither the parties nor the informed and reasonable observer should be led to believe by the comments of the judge that decisions are indeed being made based on generalizations.
[para. 131] At the commencement of their testimony all witnesses should be treated equally without regard to their race, religion, nationality, gender, occupation or other characteristics. It is only after an individual witness has been tested and assessed that findings of credibility can be made. Obviously the evidence of a policeman, or any other category of witness, cannot be automatically preferred to that of accused persons, any more than the testimony of blue eyed witnesses can be preferred to those with gray eyes. That must be the general rule. In particular, any judicial indication that police evidence is always to be preferred to that of a black accused person would lead the reasonable and knowledgeable observer to conclude that there was a reasonable apprehension of bias.
...
[para. 134] To state the general proposition that judges should avoid making comments based on generalizations when assessing the credibility of individual witnesses does not lead automatically to a conclusion that when a judge does so, a reasonable apprehension of bias arises. In some limited circumstances, the comments may be appropriate. Furthermore, no matter how unfortunate individual comments appear in isolation, the comments must be examined in context, through the eyes of the reasonable and informed person who is taken to know all the relevant circumstances of the case, including the presumption of judicial integrity, and the underlying social context.
...
[para. 138] In Pirbhai Estate v. Pirbhai, [1987] B.C.J. No. 2685, leave to appeal denied, [1988] 1 S.C.R. xii, the British Columbia Court of Appeal considered an allegation of reasonable apprehension of bias. The trial judge, in assessing the credibility of a witness commented that the demeanour of the witness had been shifty and evasive. ...The trial judge then said at p. 5, "[i]t is obvious to me that he carried on a successful business in Pakistan in a corrupt society . . . ." Seaton J.A. looked at the whole proceeding, and held, at pp. 5-6, that "I think the remarks unfortunate, but that no reasonable person reading them would apprehend any bias on the part of the trial judge in this case". The remainder of the trial judge's reasons revealed that he came to his conclusions on credibility on the basis of the evidence, not on the basis of the kind of bias or prejudice suggested by his comments about the "corrupt society".
...
[para. 141] These examples demonstrate that allegations of perceived judicial bias will generally not succeed unless the impugned conduct, taken in context, truly demonstrates a sound basis for perceiving that a particular determination has been made on the basis of prejudice or generalizations. One overriding principle that arises from these cases is that the impugned comments or other conduct must not be looked at in isolation. Rather it must be considered in the context of the circumstances, and in light of the whole proceeding.
...
[para. 143] ... The basic function of a trial judge to determine issues of credibility and make findings of fact would be rendered meaningless if the credibility of police officers were to be accepted without question whenever their evidence diverged from that given by another witness. An unfavourable finding relating to the credibility of Constable Stienburg could only give rise to an apprehension of bias if it could reasonably be perceived to have been made on the basis of stereotypical generalizations, or as Scalia J. put it in Liteky, supra, on the basis of "wrongful or inappropriate" opinions not justified in the evidence.
...
[para. 146] A reading of Judge Sparks' reasons indicates that before she made the challenged comments, she had a reasonable doubt as to the veracity of the officer's testimony and had found R.D.S. to be a credible witness. She gave convincing reasons for these findings. It is clear that Judge Sparks was well aware that the burden rested on the Crown to prove all the elements of the offence beyond a reasonable doubt, and she applied that burden. None of the bases for reaching these initial conclusions on credibility was based on generalizations or stereotypes. Her reasons for rejecting or accepting testimony could be applied to any witness, regardless of race or gender.
[emphasis added]
[10] Another decision, that of Beno v. Canada (Commissioner and Chairperson, Commission of Inquiry into the Deployment of Canadian Forces to Somalia) (C.A.), [1997] 2 F.C. 527, concerned an appeal from a Trial Division order prohibiting the Chairman of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia from making any finding adverse to respondent Beno due to a reasonable apprehension of bias. In the course of the officer's testimony before the Commission, the Chairman had interjected that Beno would not "gain much by fiddling around". Shortly after, during a breakfast meeting at an officer's mess, the Chairman, according to an affidavit filed by a Brigadier-General, said that Beno had not given straight answers and perhaps was trying to deceive. In allowing the appeal, Isaac C.J., Pratte and Stone JJ.A. stated:
[para. 29] It should first be observed that there is nothing, absolutely nothing, in the evidence that might suggest that the remark made by the Chairman on that day was inspired by something other than his own honest, although probably mistaken, perception of Beno's evidence. The Chairman was clearly reacting to Beno's testimony; in the circumstances, his comment cannot reasonably be seen as indicating a tendency to decide on some basis other than the evidence. ... More than a mere suspicion, or the reservations of a "very sensitive or scrupulous conscience," is required to displace that presumption (see Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, at pages 394-395, per de Grandpré J., dissenting).
[para. 30] ... It is entirely appropriate even for a trial judge to interject in order to clarify inconsistencies in the evidence: see Brouillard v. The Queen, [1985] 1 S.C.R. 39, at pages 42-48; Jones v. National Coal Board, [1957] 2 All E.R. 155 (C.A.). ...
[para. 31] The only reason why the Judge found the Chairman's remark on that day to be indicative of bias is that he disagreed with the Chairman's assessment of BGen Beno's demeanour and credibility. But that is not a valid reason to question the Chairman's impartiality. There is a difference between being impartial and being right. The Chairman had to form an opinion on the evidence of the witness; he had to base that opinion on his own honest perception of things. It matters little, in so far as the allegation of bias is concerned, that he may have misunderstood the evidence or been less impressed than was the Judge by the candour of the witness. It was, in our view, a gross error for the Judge to conclude that the events of January 30 gave rise to a suspicion that the Chairman was not impartial. The only reasonable inference that could be drawn from those events was that the Chairman had misunderstood the evidence and that he would, as he had said, look at the transcript before making up his mind.
[emphasis added]
ANALYSIS
[11] In order to determine if indeed there was a reasonable apprehension of bias on my part, I have carefully read the public hearing transcript of July 29th and 30th, 2003. Considering the severity of the allegations made by Mr. Zündel's counsel, direct quotes from the transcript are reproduced below.
[12] For the sake of clarity, a letter, starting with the letter "A", in bold and italic, will link Mr. Christie's allegation to the relevant passage in the transcript, either the exact quote referred to by Mr. Christie or an answer to that allegation.
[13] Submissions of reasonable apprehension of bias from Mr. Zündel's counsel, Mr. Christie:
p. 822
MR. CHRISTIE: ...
He was asked about his views on mixed race couples and did he agree with this booklet's views, at which point I objected. (A) Your lordship stated that Mr. Zündel had prepared the book and put it together, which is contrary to what he had sworn, and you said, "I want no more sneaking around about this." (B) I objected to that, and your lordship rebuked me in very clear term, indicating that, if I was to make what you referred to as further comment, it would be considered inappropriate. My perception was that it would be considered contemptuous. Naturally, I said nothing.
....
[14] When in fact, what I said was:
p. 765:
Q. [Mr. MacINTOSH]: Do you agree with Hitler's views pertaining to mixing of races, for example interracial couples? What is your view on interracial couples, Mr. Zündel?
MR. CHRISTIE: Really, my lord, I have been fairly patient, but this is a bail hearing. I just heard the question: What is your view on interracial couples? What does that have to do with flight risk, a danger to the security of Canada or anything to do with bail? I am really struggling with this, and I object to it.
THE COURT: I take your point, but I think it is important to know where Mr. Zündel stands on it, because it is difficult to follow. It was a very straightforward question. ... I think the question is acceptable.
THE WITNESS: May I correct something here. It was published by Mr. Dietz in the United States. I did not prepare the book. It is not a book published by me. I supplied the pictures.
...
p. 766
THE COURT: (A) It is important to understand. We are still sneaking around that. Those are pictures provided by you and comments that are there. Remember what you said yesterday and today about your strong views and the way you don't want your views to be seen as different than they are. It is important to know whether you share those views because you put your name there.
THE WITNESS: He asked me about interracial couples. That was the question he posed.
p. 767
THE COURT: Yes.
THE WITNESS: I haven't had a chance to answer it yet.
I say that you can marry whomever you want. I married my wife. To me, the idea of interracial couple - -
THE COURT: You disagree with the man who was co-operating with you in this book and you disagree with this comment about Adolf Hitler's comment. You are not sharing views of what Thomson is saying about that.
THE WITNESS: He asked for my racial views, but I don't know this blanket thing about Hitler's racial views. Mein Kampf, for instance, has 600 or 700 pages. Are you asking me about the party program and Hitler's idea on race in it or on - -
THE COURT: Mr. Zündel, the title of this book is:"The Hitler We Loved & Why." We have more pictures than writing. With a picture you have three, four or five lines here and there to explain the pictures. "We loved him because he kept our entertainment media free of the perversion of race-mixing and race-suicide." You really don't need a picture for that. It is very clear.
p. 768
My understanding is that Mr. Thomson, if it is not you, suggests that Mr. Hitler - - we don't have to have very subtle references to know that he was opposing a little bit what is mentioned as race-mixing and race-suicide. Mr. Thomson said that.
The question was simple: whether you share those views or not. It is very simple. Your name is on the front page of the book. Now, if you don't share those views, tell us that you don't share those views. This is a very simple question, but you are turning it around.
THE WITNESS: In my own defence, before Mr. Christie got up to object, Mr. MacIntosh had asked me about Hitler and his view on race. Mr. Christie got up and said, "This is a bail hearing." I thought I was going to answer his question, but you have gone off to this book now.
Should we just leave the question unanswered?
THE COURT: Do you share those views? Yes or no?
THE WITNESS: No, I do not.
p. 769
MR. CHRISTIE: My point, for the record, is that he should not be on trial for his views here or on the certificate. It is a bail hearing. It is inappropriate, and he is not sneaking around.
MR. MacINTOSH: In relation to whether or not bail should be granted, in my respectful submission, you are entitled to look at the totality of the evidence. As the Court said to both counsel when this process started, there would be evidence that would be called during both proceedings and that there would be an overlap. ....
THE COURT: ... (B) Also, for the record, when counsel rises and explains why and when it is cross-examination, I will tolerate objections with explanations and make a decision. There is no room for rising for the record to make comments. This is straightforward enough. There is no room for that kind of comment. This is a court room, and I (p. 770) try to give flexibility to everybody. This is a cross-examination with a lot of documents and a lot of evidence. I try to be fair to everybody and make sure that Mr. Zündel has his day or days in court to explain why detention should not be maintained. This is why we are here.
As was pointed out, we cannot look only at the detention question. There is an overlap - - that is the word used - - and I understand that. We try to do our best, and we have much more flexibility. It is a case where I have a specific obligation pursuant to the law, and this is what I am trying to do and very carefully. I try to play by the book.
[15] In my view, I was obviously misquoted by Mr. Christie, and I never suggested that Mr. Christie could be seen as contemptuous if he were to rise again; it was simply a matter of applying a basic rule of court procedure.
[16] Counsel can raise an objection at any time and a ruling can be made on the objection. I simply indicated that rising for the record to make comments without putting an objection was inappropriate. This accords totally with the Federal Court Rules and the regular practice before any court during cross-examination. The idea of contempt was nowhere in my mind, and can be found nowhere in the transcript.
[17] Another allegation made by Mr. Christie concerned the control of the Zundelsite:
p. 825
MR. CHRISTIE: ...
( C) You stated that he controls his books, he controls his fax machine therefore, he controls his web site. I observe that, until there is expert evidence on the nature of a web site, to make statements like that, in effect cross-examining Mr. Zündel, is another entrance into the arena. That indicates, as I was about to say, in actual fact to a reasonable observer that this case is finished, is over. The determination in the mind of a reasonable observer has been made.
One could say, as your lordship did, "I only disbelieve you in this." But, when you call a witness, who has sworn to tell the truth, the whole truth and nothing but the truth, a liar in one regard, how can it be said that you would accept his oath in another regard? It is tainting his credibility in the whole of the proceeding.
Before the evidence on the whole case is before you and before Ingrid Zündel, who is by Mr. Zündel's evidence the owner of the web site, the possessor of the password, the programmer of the web site - - before you have heard from her, to call him a liar, in my respectful submission, creates in the mind of a reasonable observer a bias of such prejudicial effect that a reasonable person would conclude that you would not believe him in other regards as well.
[emphasis added]
[18] My comment was rather:
p. 631
Q. [MacINTOSH]: As a person who is well known in Canada, your testimony is that you have no control over what goes on and what comes off the Zundelsite. Is that right?
A. Ultimately I have no control.
THE COURT: ( C) Could you explain what you mean by "ultimately." I don't want to be confused because this is something that is important.
I don't need that line of questions because you have been before me for four or five days. This is a web site. This is where your wife is controlling the password. There is some information that is getting on the site and you have no control. It is like you brought a book to your publisher and you knew what was written in the book and what was going to be published. On your television show and your radio show it is about the same. If you have something on your web site that is going totally against your views and your opinions, do you tolerate that and say. "I have no control over the password, so she could say that I am stupid, I am the worst person in the world?" You would tolerate that, and you have no control over the password.
Do you think for a minute that I am going to believe that?
THE WITNESS: Let me explain to you the situation.
THE COURT: Explain to me because the more we talk about it, the worse it is, in my opinion.
...
p. 633
THE COURT: Yes, but a web site is just a way to transport somehow ideas and support for a piece of paper. When you watch television, you look at the screen. When you look at a web site, it is about the same as reading a book.
MR. CHRISTIE: Excuse me, I object.
THE COURT: You are objecting to...?
MR. CHRISTIE: I am objecting. Let me state my objection.
You just said that a web site is like a book. My lord, do you realize that a web site can change three times a day, and a book does not? If your lordship is going to cross-examine this witness on the basis of assumptions of fact about web sites, then there should be somebody here to tell you that web sites change at a keystroke. Not a book, not a TV show, not a radio show; once they are produced, they are fixed.
...
p. 634
THE COURT: You are objecting to - -
MR. CHRISTIE: You just said a web site is like a book.
THE COURT: You can't really substantiate your objection about a couple of questions I am asking to clarify his position. I am just trying to understand. I don't think I will tolerate, unless you substantiate them, objections to a question that is not yet put to the witness. I think I am entitled to ask questions of witnesses.
MR. CHRISTIE: Absolutely, but - -
...
p. 635
THE COURT: I don't want to harass you, Mr. Zündel. I am just trying to understand.
On the web site there is (p. 636)information that is moving, maybe moving faster than a book or whatever, but I am trying to understand who controls that information and what is your knowledge - - ...
THE WITNESS: I am glad that you are asking because I want to give you my picture of this mess.
You said something about controlling the radio show a minute ago and producing a radio show and a TV show. When I did that, I was in control. ...
Nothing like that has ever happened on the web site. Everybody can fault me. I even fault myself for being fuzzy and loose about the web site. ...
[19] Furthermore:
p. 823
Mr. CHRISTIE: (D) ... You have also said that you did not believe Mr. Zündel, and said this repeatedly, in regard to control of the web site.
This is a bail hearing. You have not heard the evidence of the owner of the web (p. 824)site, which you could hear. You have repeatedly referred to it as Mr. Zündel's web site.
Subsequently, you did say after a period of time that your comments about disbelieving him were "not on everything," but that was not immediate. It appeared, and would appear to a reasonable person, that after consideration of the impact of your statement you decided to qualify it. I will be submitting that to a reasonable observer your statement regarding disbelief was far broader than the subsequent qualification.
page 660:
Q. [MacINTOSH]: ...
After the exchange with justice Blais where he asked you whether you were afraid of having someone putting documents on the site and his lordship said that he couldn't imagine and that he would have difficulty sleeping himself if someone was using his name on a computer, turning over to page 195, you said:
"I have tribulations, and his Lordship said, sometimes I don't fall asleep easily"
Q. Why?
A. Because she is a novelist sir." [Mr. Zündel's wife is a novelist]
If you have tribulations about your current wife putting material on your web site, that is all the more reason that you would have wanted to have some input into the material that was put on there when you were not even married to the woman. Isn't that right, Mr. Zündel?
A. You are talking about ultimate responsibility. My legal advice was for the last eight years that, if I did not have the password, if I did not - -
THE COURT: Excuse me, we are not asking (p. 661) about legal responsibility, about who is the owner of the site or whatever. This is about whether, when someone with strong views is using a web site, they share those views with you and you participate somehow. The question of ultimate responsibility or legal responsibility is something else. I think we are missing the point here.
THE WITNESS: Tribulations - - there were tribulations when my name was used on the site.
THE COURT: You mentioned tribulations. I was using another expression.
THE WITNESS: I illustrated that again this morning, with those names that appeared on the Zundelsite which captains at the jail brought to my attention. That is one of those not falling asleep easily situations. That is what I mean.
At the jail I was told not to reveal the name of the guards or any of the captains, and I did not. Yet, the captain comes to my cell and says there is this material giving the names. I said, "Well, Captain, I don't see any computers. I will make inquiries." I did make inquiries, and it turns out that it was something (p. 662) Mr. Fromm had written and my wife took it.
THE COURT: (D) Anyway, Mr. Zündel, the more we talk about it, the more I don't really believe what you say.
If you have other questions, go ahead.
I am not talking about everything; I am talking about the last part of it. To arrive at a conclusion that you are right, I would have to come to the conclusion that you are not smart enough to keep any control on that web site. It is very difficult. So far, I am far from convinced by your arguments, far from it. I think we should go to another line of questions.
p. 666:
MR. CHRISTIE: Is this really part of the Zundelsite, my lord? Has that been established?
THE COURT: This is a photocopy of a web site document. You have the note at the bottom.
MR. CHRISTIE: The bottom note does not identify the web address; it is partly obliterated. Is my friend prepared to swear or to put before this Court some evidence (a) that this (p. 667)comes from the Zundelsite? I haven't heard it. If this witness admits that it came from the Zundelsite or says he wrote it, that makes it relevant. Otherwise, I am questioning it; that is all.
THE COURT: You are questioning what? You are questioning whether this document is issued by printing what appears on the monitor one day on the Zundelsite? You are saying you don't have evidence of that?
MR. CHRISTIE: There is no evidence of that. To make it relevant, it is quite possible to ask this witness (a) if he wrote it or, alternatively, if he knows that it came from the Zundelsite. Before it can be used as some evidence, at least that should be established.
THE COURT: I think we know the answer.
MR. CHRISTIE: I don't.
THE COURT: Unless he qualifies himself as totally illiterate as far as you refer to the Zundelsite - -
MR. CHRISTIE: He could say that he wrote it, but he should be asked.
THE COURT: I already said a few (p. 668)minutes ago that I don't believe that he is that illiterate as far as this web site. This is the evidence that was presented to me, but it is my duty pursuant to this review to make findings from the evidence that is before me, pursuant to the evidence given by the witnesses and by the documents.
I already said for the record that I don't believe everything I heard from the witness about this. This is my duty. Probably you are not very happy with that, but for this particular point I don't believe the witness.
We could ask him about this, but I already know the answer because he said that this morning. You could ask any question about the site, and he doesn't know anything about it. He doesn't know how it works. This is the answer he already gave to me two months ago. He doesn't know how it works. He doesn't know how to push the buttons or the password; he doesn't know how it works. That is what he said.
Is my recollection correct?
THE WITNESS: It is absolutely correct.
THE COURT: So you are going (p. 669) to ask him whether this is a copy of what appeared on the monitor on the web site?
MR. CHRISTIE: No. Ask him if he wrote it. That is what would make it relevant. Otherwise, my friend should call some evidence as to where it came from.
THE COURT: I already know that. The answer will be: No, I didn't. He said that Ms Rimland was typing manuscripts for him. That is part of her job. That is what he has already said. He said that this morning and he said that before the two other tribunals.
MR. CHRISTIE: ... Is it evidence or is it not? It is not evidence if it didn't come from the Zundelsite. You have correctly identified at least his ( p. 670) position, which you don't believe, that he does not control the Zundelsite and that he would not know if it came from the Zundelsite. You can disbelieve him, that's fine.
...
p. 672
THE COURT: ... I take your point, but in your arguments at the end, Mr. Christie, you will (p. 673)probably say that I should not take this document into consideration. You should wait a bit before doing that. For this very moment, I think this document is acceptable as other documents are part of the evidence. It is obviously relevant. The question as to its real value and determinative value is another point for another day.
MR. CHRISTIE: Thank you, my lord.
...
p. 674:
THE COURT: Excuse me, before you go to your next question, I want to go back to the last document. ...
THE WITNESS: Right.
THE COURT: Have you done anything (p. 675) since that moment to get in contact with your wife to tell her about your frustration about that and that you disagree with this document? Do you disagree with the content of this document?
THE WITNESS: No. ...
...
THE WITNESS: You are asking me if I am totally against this content. I am not totally against - -
...
[20] It should also be stated that many documents are before the Court, including a decision of another court regarding the credibility of the witness Mr. Zündel and his knowledge of and degree of control over the "Zundelsite".
[21] I asked several questions, as the Court is entitled to do, to clarify the witness' position on this matter and to express my doubts, for instance at page 662 of the transcript (see above at para. 19).
[22] Now, as pertains to the issue of my supposed hostility towards Mr. Zündel;
p. 822
MR. CHRISTIE: (E) ... On numerous occasions you have intervened in the cross-examination in a manner demonstrating open hostility to Mr. Zündel.
...
With regard to the book, "The Hitler We Loved & Why", it is our submission that it is unrelated to either the flight risk or connected to terrorism and was unnecessarily introduced to attack opinion. Be that as it may, in the course of Mr. Zündel's explanation regarding this, he explained that he merely provided the photographs.
In an exchange between Mr. Zündel and your lordship, during which Mr. Zündel was being questioned on this book, he testified that he did not write the text but that he supplied the photos.
[23] I believe on the contrary that I have done my utmost to give Mr. Zündel a fair hearing, as the following passages illustrate; first:
p. 818
Q. [MacINTOSH]: I put it to you, Mr. Zündel, that it is classic racism to talk about freedom of speech based on the colour of someone's skin.
THE COURT: (E) He answered the question. ...
MR. MacINTOSH: We have his answer.
THE COURT: You have his answer now.
By the way, Mr. MacIntosh, you should know that we are not going to revisit every day the transcript of what the witness said on a previous day of hearing. ... We are not going to revisit all of those transcripts; we are not going to revisit next week the transcript of today. That will not be acceptable.
MR. MacINTOSH: In my respectful submission, there are inconsistencies in what he testified to.
THE COURT: You put your question and he provided an answer. Is he right or wrong? Is it a correct answer? I don't know for the moment, but he responded to your question. ...
[24] Secondly, when commenting on Mr. MacIntosh's questions to Mr. Zündel:
p. 695
THE COURT: The point is made. You cannot ask a witness to remember everything in those thousands of pages. We understand that.
MR. MacINTOSH: Agreed.
[25] Thirdly, when ruling on an objection made by Mr. Christie:
p. 719
THE COURT: ... I think Mr. Christie is right in the sense that it is not a direct quote, and we should be careful with that. You can ask questions (p. 720)about that of the witness, but keep in mind that those are not direct quotes from the Zundelsite.
Do you agree with me on that?
MR. MacINTOSH: Yes, that's fine.
[26] Fourthly:
p. 726
Q. [MacINTOSH]: Therefore, when statements are put on the Zundelsite that say "I, Ernst Zündel, created the Zundelsite" or "I, Ernst (p. 727) Zündel, did such and such", is it your position that your wife wrote those statements?
A. That is why I was surprised when you first showed it to me, because there is - -
THE COURT: The witness already answered that when you precisely presented the quote. I found the quote when he said: "Sure, she typed it."
MR. MacINTOSH: I am raising a different point.
Q. Are you telling me that statements that are worded on the Zundelsite in the first person, that your wife with a Ph.D. in education does not know the difference between the first person and the second and third persons? She is an English-speaking person.
A. Mr. MacIntosh, that is why I was surprised when you first showed it to me. I don't know. Was she tired when she created the document?
THE COURT: Come on, please! What are the two words at the very end of the text? "Ernst Zündel." When you write something on behalf of someone else, you couldn't write it in the first person. You could turn around all those things - - ( p. 728) and I have already told you how I feel about it.
MR. MacINTOSH: I am moving on to something else, my lord.
[27] And finally, in referring to Mr. Zündel's detention conditions:
p. 967
THE COURT: ... With all due respect for those authorities that deserve this respect, I also have respect for Mr. Zündel who needs a bit more flexibility in his conditions. He is not a criminal. He is in detention for a special purpose pursuant to our law, but I think he is entitled to have a bit of flexibility, just as anybody else.
I don't know what space he has; I am not aware of that, but we could render it more easy for him. Also, with the number of documents (p. 968) he has, he should be entitled to write. It is so simple that I am even shy to discuss that in a court room. ...
THE COURT: Pens are probably there, but you have a problem with access to the equipment.
You are a reasonable man. Everybody here is reasonable, and we will try to get some reasonable conclusion to that and find a way to satisfy you.
[emphasis added]
[28] The following are Mr. MacIntosh's submissions as to the motion for recusal:
p. 829
MR. MacINTOSH: In my respectful submission, you should not recuse yourself. This is an entirely specious allegation that has no reasonable basis in fact or in law. There is no reasonable apprehension of bias. A trial judge or any judge acting conscientiously and diligently is entitled to interject at proceedings to ask questions of witnesses in order to clarify matters that the judge is not certain about and that relate to evidence that has been presented before the Court.
These proceedings are extremely complicated proceedings under the Immigration Act (p. 830) relating to a danger to the security of Canada, whether or not Mr. Zündel is ultimately inadmissible. ...
I would note that in the materials that have been provided you have a decision of the Canadian Human Rights Tribunal in which the Tribunal made findings that Mr. Zündel was in control of the Zundelsite. Obviously, that is not determinative in any way on you, but it is a factor that you can consider in framing questions to a witness, particularly when a witness is giving evidence that calls for a more complete explanation given the finding of the Tribunal and given the statements that the witness is making.
In my respectful opinion, the fact that you have said, as a preliminary matter, that you do not believe what a witness has to say on a particular point does not mean that you have decided that issue ultimately. It just means that you are alerting the witness to the fact that, (p. 831)based on what the witness is saying at that particular juncture, you have some doubts and that you want the witness to clarity based on what the witness' testimony has been. That is entirely fair, in my respectful submission.
In relation to the comments pertaining to "The Hitler We Loved & Why", I would point out that this is a bail hearing but, at the same time, in evaluating the strength of the case as to whether or not Mr. Zündel should be released, you have to make some sort of determination as to whether he poses a risk to the public or a danger to the security of Canada.
It has also been clear from the start of these proceedings, in my respectful submission, that evidence would be tendered not only in relation to the bail hearing, but in relation to the reasonableness of the certificate. Therefore, there has been an intermixture of the material that has been presented and tendered.
To draw a strict demarcation, as my friend is doing, and to confine the issue simply to bail is a misreading of the statutory scheme, in my respectful submission.
...
p. 835
I would submit that there is absolutely no basis whereby any reasonable person could conclude that there has been a reasonable apprehension of bias or that there is bias or that you have become partial. I don't think that, simply because you have asked some questions and expressed some preliminary views based on evidence that is evolving over a considerable period of time in what can only be described as a lengthy cross-examination, indicates that you have descended into the arena or lost impartiality.
p. 836
... [M]y friend should not be trying to foreclose cross-examination of Mr. Zündel, which, in my respectful submission, he is attempting to do by this application today which has no basis in fact or law.
...
p. 837
... It would have been more beneficial had we had a transcript. Remarks also have to be looked at in context. In my respectful submission, he [Mr. Christie] has taken many of your remarks out of context.
[emphasis added]
[29] Here is a passage of Mr. Christie's reply to Mr. MacIntosh's submissions:
p. 839
I have no concern or objection or criticism of the right of a judge to question during cross-examination where any judge is of the view that he needs clarification. I am not so stupid, nor did I suggest that that was the issue. My friend misinterprets my argument if he suggests that that was my argument. It is not the questioning of the witness that has been my concern, nor was it part of my submission. It is the expression of opinions which I directly quoted to the best of my ability.
It is not necessary to be terribly concerned with context when remarks of that nature are expressed. Were the context a concern, then I am quite happy to take the time to obtain the transcript, but I thought it my duty to immediately bring to your lordship's attention our concern.
[30] As to the fact that Mr. Christie did not receive instructions from his client before making this motion:
p. 843
THE COURT: Do I understand that this motion has been made by you without the (p. 844) knowledge of whether your client even agrees with it?
MR. CHRISTIE: I made the decision as counsel that it was in the interests of both justice and my client.
...
My position, if I may, on the basis of my best judgment as counsel, is to request that your lordship reserve on this issue, take whatever time you think is appropriate, and then you would have a transcript. We will not waste the day. My friend can proceed with the cross-examination. I have expressed my views. The judicial efficiency will not be prejudiced, and your lordship can dispose of the motion after careful reflection. ...
p. 845
THE COURT: You are suggesting that I reserve on this point and go on with the hearing. Is that what you are suggesting?
MR. CHRITIE: Yes, my lord.
THE COURT: Even though you raise a reasonable apprehension of bias?
MR. CHRISTIE: Yes. ...
[emphasis added]
[31] When my remarks are examined in their proper context, it is obvious that I am not expressing any fixed views on the determination of this case. It is merely an indication to the witness that I am somewhat doubtful about some of his statements. Never did I say, contrary to what Mr. Christie contends, that Mr. Zündel was a liar.
[32] The jurisprudence, when applied to the present motion, clearly states that my remarks must be examined in context (contrary to Mr. Christie's assertion), through the eyes of the reasonable and informed person who is taken to know all the relevant circumstances of the case, including the presumption of judicial integrity, and the underlying social context. In that sense, I believe that an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that there is no reasonable apprehension of bias.
[33] I believe that a review of my actual comments during the proceedings shows that Mr. Christie's allegations are unsubstantiated.
CONCLUSION
[34] As established in R.D.S., supra, a high standard must be met before a finding of reasonable apprehension of bias can be made. Counsel for Mr. Zündel has not met the onus of providing sufficient cogent evidence to impugn my impartiality. Neither the parties nor the informed and reasonable observer could be led to believe by my comments that decisions were indeed being made based on generalizations. My remarks, viewed in context, do not give rise to a perception that I prejudged the issue of credibility on the basis of generalizations. My reasons for rejecting or accepting testimony could be applied to any witness.
[35] I find that no reasonable apprehension of bias by reasonable, right minded and informed persons can be entertained.
[36] Therefore, the motion is dismissed.
ORDER
THIS COURT ORDERS THAT:
This motion for recusal be dismissed.
Pierre Blais
J.F.C.
OTTAWA (ONTARIO)
September 22, 2003
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;
An in the matter of Ernst Zündel
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 28 - 30, 2003
REASONS FOR Order : The Honourable Mr. Justice Blais
DATED: September 22, 2003
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
Doug Christie FOR RESPONDENT
Barrister & Solicitor
Victoria, B.C.