Zûndel, Re

Zûndel, Re
Court (s) Database
Federal Court Decisions
Date
2005-02-24
Neutral citation
2005 FC 295
File numbers
DES-2-03
Decision Content
Date: 20050224
Docket: DES-2-03
Citation: 2005 FC 295
Ottawa, Ontario, February 24, 2005
Present: The Honourable Mr. Justice Blais
BETWEEN:
IN THE MATTER OF a certificate signed pursuant to subsection
77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
("Act");
AND IN THE MATTER OF the referral of that certificate to the
Federal Court pursuant to subsection 77(1), sections 78 and 80 of the Act;
AND IN THE MATTER OF ERNST ZÜNDEL
DECISION ON THE REASONABLENESS OF THE CERTIFICATE
INTRODUCTION
[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 Zündel, a permanent resident of Canada, is inadmissible on grounds of security, specifically, that there are reasonable grounds to believe that Mr. Zündel is inadmissible pursuant to sections 33, 34(1)(c), (d), (e) and (f) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (Immigration Act or IRPA).
[2] Sections 33 and 34 of IRPA:
33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.
34(1) Security
34. (1) A permanent resident or a foreign national is inadmissible on security grounds for
(a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada;
(b) engaging in or instigating the subversion by force of any government;
c) engaging in terrorism;
(d) being a danger to the security of Canada;
(e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or
(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or c).
34(2) Exception
(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.
33. Les faits - actes ou omissions - mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu'ils sont survenus, surviennent ou peuvent survenir.
34(1) Sécurité
34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants_:
a) être l'auteur d'actes d'espionnage ou se livrer à la subversion contre toute institution démocratique, au sens où cette expression s'entend au Canada;
b) être l'instigateur ou l'auteur d'actes visant au renversement d'un gouvernement par la force;
c) se livrer au terrorisme;
d) constituer un danger pour la sécurité du Canada;
e) être l'auteur de tout acte de violence susceptible de mettre en danger la vie ou la sécurité d'autrui au Canada;
f) être membre d'une organisation don't il y a des motifs raisonnables de croire qu'elle est, a été ou sera l'auteur d'un acte visé aux alinéas a), b) ou c).
34(2) Exception
(2) Ces faits n'emportent pas interdiction de territoire pour le résident permanent ou l'étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l'intérêt national.
[3] On May 1, 2003, the Ministers also signed a warrant for Mr. Zündel's arrest pursuant to subsection 82(1) of the IRPA. That same day, by teleconference, as a designated judge of the Federal Court, I commenced the hearing into the reasonableness of the certificate and the reasons for detention, in accordance with paragraph 78(d) and subsection 83(1) of the IRPA.
78. The following provisions govern the determination:
...
(d) the judge shall examine the information and any other evidence in private within seven days after the referral of the certificate for determination;
78. Les règles suivantes s'appliquent à l'affaire_:
[...]
d) il examine, dans les sept jours suivant le dépôt du certificat et à huis clos, les renseignements et autres éléments de preuve;
83. (1) Not later than 48 hours after the beginning of detention of a permanent resident under section 82, a judge shall commence a review of the reasons for the continued detention. Section 78 applies with respect to the review, with any modifications that the circumstances require.
83. (1) Dans les quarante-huit heures suivant le début de la détention du résident permanent, le juge entreprend le contrôle des motifs justifiant le maintien en détention, l'article 78 s'appliquant, avec les adaptations nécessaires, au contrôle.
[4] After reviewing the material filed in support of the certificate, I ordered on May 5, 2003, that Mr. Zündel be provided with a statement summarizing the information and evidence pursuant to paragraph 78(h) of the IRPA (the Summary) and that Mr. Zündel be provided with an opportunity to be heard. Five binders containing hundreds of documents were also provided to Mr. Zündel; these were the background documents referred to in the Summary. Other documents remained classified and were not disclosed to Mr. Zündel because I have determined that the information and the evidence contained in those documents would be injurious to national security or to the safety of any person if disclosed.
OVERVIEW
[5] The position of the Ministers is that the certificate is reasonable and that based on the information and evidence available, Mr. Zündel is inadmissible to Canada on security grounds. The basis of that belief is that Mr. Zündel's status within the White Supremacist Movement (the Movement) is such that he is a leader and ideologue who inspires, influences, supports and directs adherents of the Movement to actuate his ideology.
[6] It is important to note that Mr. Zündel's views on the Holocaust had been known for years, but were of no concern to the Canadian Security Intelligence Service (CSIS). They may well have been an irritant to many and may have been considered as vile and perverse, but they were not enough to label him as a security threat. Rather, the investigations only began when Mr. Zündel crossed the boundaries of free speech and pursuant to the Ministers' opinion, entered the realm of incitement to hatred and potential political violence in relation to the White Supremacist Movement.
[7] The Ministers also suggest that Mr. Zündel intends serious violence to be a consequence of his influence and to this extent, Mr. Zündel is engaged in the propagation of serious political violence to a degree commensurate with those who actually execute the acts. It is these alleged activities that the Ministers believe make Mr. Zündel inadmissible to Canada on security grounds.
[8] In his response, Mr. Zündel argues that he is merely a 65 year old man, who has lived peacefully in Canada from 1958 to 2000, that he has no criminal record in Canada and faces no criminal charges in Canada.
[9] Mr. Zündel suggests that CSIS has no evidence that during his stay in Canada, he ever:
a) aided or abetted the commission of any criminal offence in Canada;
b) conspired with anyone to commit any criminal offence in Canada; or
c) counselled anyone to commit any criminal offence in Canada.
[10] Mr. Zündel firmly insists that there is nothing in the evidence that could lead him to be inadmissible on one of the grounds of inadmissibility provided by section 34 of the IRPA. He further suggests that not only does CSIS have no case against him, but that it decided to begin these proceedings on a vendetta against him which was in no way justified.
[11] Finally, Mr. Zündel suggests that he is thus at the mercy of a secret proceeding and of the judge conducting it. He is not aware of the evidence that is provided in camera and he cannot provide any response to the arguments that have been made in camera.
[12] The decision of the designated judge must be made with reference to sections 80 and 81 of the IRPA, which provide:
80. (1) The judge shall, on the basis of the information and evidence available, determine whether the certificate is reasonable and whether the decision on the application for protection, if any, is lawfully made.
80(2) Determination that certificate is not reasonable
(2) The judge shall quash a certificate if the judge is of the opinion that it is not reasonable. If the judge does not quash the certificate but determines that the decision on the application for protection is not lawfully made, the judge shall quash the decision and suspend the proceeding to allow the Minister to make a decision on the application for protection.
80(3) Determination not reviewable
(3) The determination of the judge is final and may not be appealed or judicially reviewed.
81 Effect of determination - removal order
81. If a certificate is determined to be reasonable under subsection 80(1),
(a) it is conclusive proof that the permanent resident or the foreign national named in it is inadmissible;(b) it is a removal order that may not be appealed against and that is in force without the necessity of holding or continuing an examination or an admissibility hearing; and
c) the person named in it may not apply for protection under subsection 112(1).
80. (1) Le juge décide du caractère raisonnable du certificat et, le cas échéant, de la légalité de la décision du ministre, compte tenu des renseignements et autres éléments de preuve don't il dispose.
80(2) Annulation du certificat
(2) Il annule le certificat don't il ne peut conclure qu'il est raisonnable; si l'annulation ne vise que la décision du ministre il suspend l'affaire pour permettre au ministre de statuer sur celle-ci.
80(3) Caractère définitif de la décision
(3) La décision du juge est définitive et n'est pas susceptible d'appel ou de contrôle judiciaire.
81 Effet du certificat
81. Le certificat jugé raisonnable fait foi de l'interdiction de territoire et constitue une mesure de renvoi en vigueur et sans appel, sans qu'il soit nécessaire de procéder au contrôle ou à l'enquête; la personne visée ne peut dès lors demander la protection au titre du paragraphe 112(1).
[13] In Almrei v. Canada (Minister of Citizenship and Immigration), 2004 FC 420, [2004] F.C.J. No. 509, at paragraphs 28-32 and 35, this Court decided that the jurisprudence applicable to the security certificate scheme under the former Immigration Act, R.S.C. 1985, c.I-2, also applies to determinations under the current IRPA scheme.
ISSUES
[14] 1. Is the security certificate issued on May 1, 2003, by the Solicitor General of Canada and the Minister of Citizenship and Immigration certifying that Mr. Zündel is inadmissible to Canada on security grounds as described in paragraphs 34(1)c), (d), (e) and (f) of the Immigration and Refugee Protection Act reasonable?
2. Is the Pre-Removal Risk Assessment decision rendered on October 28, 2003, stating that Mr. Zündel would not be subjected to a risk of torture or a risk to his life or a risk of cruel and unusual treatment or punishment, if he were returned to Germany, lawfully made?
STANDARD OF PROOF
[15] This Court, as well as the Federal Court of Appeal, have already determined the test to be applied in cases such as this (See Baroud v. Canada, [1995] F.C.J. No. 829, 98 F.T.R. 91, at paragraph 5; Re Charkaoui, [2004] 1 F.C.R. 528, [2003] F.C.J. No. 1119, at paragraphs 36-39; Yao v. Canada (Minister of Citizenship and Immigration), 2003 FCT 741, [2003] F.C.J. No. 948, at paragraph 28; Re Zündel, 2004 FC 1295, [2004] F.C.J. No. 1564, at paragraph 26). To demonstrate that the certificate is reasonable, the Ministers must only demonstrate that there is a serious possibility, based on credible evidence, that Mr. Zündel is inadmissible on one of the grounds of inadmissibility provided by section 34 of the IRPA. In fact, the Ministers do not have to conclusively demonstrate any of the allegations of inadmissibility. As was stated at paragraph 60 of Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.), [2000] F.C.J. No. 2043, leave to Supreme Court of Canada denied August 16, 2001, [2001] S.C.C.A. No. 71:
As for whether there were "reasonable grounds" for the officer's belief, I agree with the Trial Judge's definition of "reasonable grounds" (supra, at paragraph 27, page 658) as a standard of proof that, while falling short of a balance of probabilities, nonetheless connotes "a bona fide belief in a serious possibility based on credible evidence." See Attorney General of Canada v. Jolly, [1975] F.C. 216 (C.A.).
[16] As for the requirement that the different paragraphs of subsection 34(1) of the IRPA be read disjunctively from one another, and as per Almrei v. Canada (M.C.I.), supra, which permits jurisprudence under the previous law to be applied to the current one, I would refer to Canada (Minister of Citizenship and Immigration) v. Singh (1998), 151 F.T.R. 101, [1998] F.C.J. No. 1147:
In this case, the certificate reads:
We hereby certify that we are of the opinion, based on a security intelligence report received and considered by us, that Iqbal Singh is a person described in paragraphs 19(1)(e)(ii), 19(1)(e)(iv)(B), 19(1)(e)(iv)C), 19(1)(f)(ii) and 19(1)(f)(iii)(B) of the Immigration Act.
The word "and" might be thought to imply that unless all of the grounds for the certificate are proven, the certificate would have to be found to be unreasonable. However, I think each of the grounds must be read disjunctively and if any one of them is proven, the certificate will have to be determined to be reasonable.
As support for this proposition, one need only look to subsection 40.1(1) pursuant to which the certificate is filed. Clearly the word "or" in subsection 40.1(1) indicates that the list of grounds for a certificate is to be read disjunctively. Within subsection 19(1), each paragraph and subparagraph is separate. If a person is described in any one of the subparagraphs under subsection 19(1), referred to in subsection 40.1(1), he or she is inadmissible and may be subject to the issuance of a certificate under section 40.1.
A disjunctive reading is also consistent with section 38.1 of the Immigration Act which explains the purposes of section 40.1. Clearly, if a person is described in any one of the subparagraphs of subsection 19(1) referred to in subsection 40.1(1), he or she may constitute a threat to the security interest of Canada or may be a person whose presence may endanger the lives or safety of persons in Canada. It would not be consistent with section. 38.1 or subsection 40.1(1) to require proof that there are reasonable grounds to believe a person is described in more than one class named in subsection 19(1) referred to in subsection 40.1(1). I am satisfied, notwithstanding the wording of the certificate, that if any one of the grounds for the certificate is proven, the certificate must be determined to be reasonable. (Canada (M.C.I.) v. Singh, supra, at paragraphs 4-6)
[17] It should be noted that although I cite the Almrei case in applying jurisprudence relating to the previous immigration law, the new legislation is very similar in that subsection 77(1) of the IRPA clearly uses the conjunction "or" in listing the grounds for a certificate. Furthermore, subsection 34(1) lists the inadmissible security grounds as different paragraphs separated with the conjunction "or", as did subsection 19(1) of the previous law.
[18] Contrary to counsel for Mr. Zündel's submissions that the Ministers must demonstrate Mr. Zündel's current or future wrongdoings, pursuant to section 33 of the IRPA, the Ministers can provide evidence or information of past, present or anticipated future circumstances of Mr. Zündel's inadmissibility on security grounds. In Al Yamani v. Canada (Minister of Citizenship and Immigration), 2003 FCA 482, [2003] F.C.J. No. 1931, leave to Supreme Court of Canada denied August 26, 2004, [2004] S.C.C.A. No. 62, the Federal Court of Appeal recognized that the past conduct of individuals, particularly those who have engaged in activities which constitute a threat to the security of Canada, must be considered in the determination concerning inadmissibility:
With respect, I think it is hard to conceive of many allegations more serious than one involving terrorism or membership, past or present, in a terrorist organization. Terrorist organizations by their nature are unpredictable. The existence of sleeper cells is widely recognized and the mere fact someone has lived peacefully in Canada for many years does not preclude them from being a threat to the security of Canadians. Contrary to the appellant's arguments, an allegation that someone is a former member of a terrorist organization therefore is a very serious one. Therefore, the gravity of the allegations argues in favour of continuing the proceedings. (...) (Al Yamani v. Canada (M.C.I.), supra, at paragraph 38)
[19] Counsel for Mr. Zündel has insisted that Mr. Zündel was never involved in acts of violence. I would point out that there is no requirement that an individual who is inadmissible to Canada on security grounds be personally involved in acts of violence. Such an interpretation is short-sighted and not in keeping with the ruling of the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, that danger to the security be given a "fair, large and liberal interpretation". There is therefore no requirement that criminality be determined in order for a permanent resident or a foreign national to be found to be a danger to the security of Canada (Suresh v. Canada (M.C.I.), supra, at paragraph 85; see also Almrei v. Canada (M.C.I.), supra, at paragraphs 99 and 100). Rather, as mentioned earlier, the threat that a person may constitute a danger to the security of Canada must be substantial and based on an objectively reasonable suspicion.
These considerations lead us to conclude that a person constitutes a "danger to the security of Canada" if he or she poses a serious threat to the security of Canada, whether direct or indirect, and bearing in mind the fact that the security of one country is often dependant on the security of other nations. The threat must be "serious", in the sense that it must be grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible. (Suresh v. Canada (M.C.I.), [2002] 1 S.C.R. 3 at paragraph 90)
[20] In Suresh, the Federal Court of Appeal held that activities which are undertaken in support of a furtherance of terrorist activities such as funding, are reprehensible and not worthy of constitutional protection:
As violent forms of expressions do not receive constitutional protection, neither can fundraising in aid of terrorism. It is true that there are no allegations of criminal activity against the appellant, nor allegations that he engaged in terrorism in Sri Lanka or was involved directly in the procurement and supply of weapons for the LTTE. However, activities which are undertaken in support of and in furtherance of terrorist activities constitute reprehensible conduct outside the protections offered by the Charter. In my view, those who freely choose to raise funds used to sustain terrorist organizations bear the same guilt and responsibility as those who actually carry out the terrorist acts. Persons who raise funds for the purchase of weapons, which they know will be used to kill civilians, are as blameworthy as those who actually pull the triggers. Clearly, freedom of association and expression are rights accorded [to] those who seek political goals. But those rights do not enure to the benefit of those who seek to achieve political goals through means which undermine the very freedoms and values which the Charter seeks to promote. Contrary to the argument advanced by the appellant's counsel, the values underlying section 2 of the Charter, such as the pursuit of "truth", "social participation in the community" or "individual fulfilment" simply do not come into play in the present case.
In summary, fundraising in the pursuit of terrorist violence must by necessity fall outside the sphere of protected expression. This conclusion is also fatal to the argument that those provisions of section 19 of the Immigration Act that render a person inadmissible to Canada because of membership in a terrorist organization violate an individual right of free association. Those who express their beliefs through active participation with organizations engaged in terrorist activities can find no solace in paragraph 2(d) of the Charter. (Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592, at paragraphs 43-44 (C.A.), rev'd on other grounds [2002] 1 S.C.R. 3)
[21] The Federal Court of Appeal also held that consideration of what constitutes a danger to the security of Canada must include consideration of Canada's international relations:
Applying a contextual analysis, it is clear that what presents a danger to the security of Canada is informed by the provisions of the Immigration Act and the Canadian Security Intelligence Service Act, R.S.C., c. C-23. Generally stated, the purpose of this legislation is to exclude from Canada persons who are or were members of a terrorist organization and who may engage in nefarious activities either in Canada or abroad using Canada as a base. That terrorists acts have been committed in Canada is a matter of public record; e.g. Air India disaster. That terrorist organizations might use Canada as a base from which to operate is not simply a theoretical possibility as will be explained below; see discussion infra, paragraph 109. Moreover, the "security of Canada" cannot be limited to instances where the personal safety of Canadians is concerned. It should logically extend to instances where the integrity of Canada's international relations and obligations are affected. It must be acknowledged that only through the collective efforts of nations will the threat of terrorism be diminished. The efficacy of those collective efforts is undermined each time a nation provides terrorist organizations with a window of opportunity to operate off-shore and achieve indirectly what cannot be done as efficiently and effectively in the country targeted for terrorist attacks. (Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592, at paragraph 61 (C.A.), rev'd on other grounds [2002] 1 S.C.R. 3)
[22] This is also supported by paragraph 3(1)i) of the IRPA, which lists as an objective of the Act:
3(1) Objectives - Immigration - The objectives of this Act with respect to immigration are
...
i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; ...
3. (1) En matière d'immigration, la présente loi a pour objet_:
[...]
i) de promouvoir, à l'échelle internationale, la justice et la sécurité par le respect des droits de la personne et l'interdiction de territoire aux personnes qui sont des criminels ou constituent un danger pour la sécurité;
[...]
ANALYSIS
[23] Pursuant to the Security Intelligence Report of which Mr. Zündel was provided a summary, White Supremacists are defined as racists, neo-Nazis and anti-Semites who use violence to achieve their political objectives. Leading White Supremacists may inspire others to use or threaten use of violence. Mr. Zündel is viewed by White Supremacists as a leader of international significance and was viewed as the patriarch of the Movement in Canada for decades. Mr. Zündel is one of the world's most prominent distributors of revisionist neo-Nazi propaganda through the use of facsimiles, courier, telephone, mail, media, shortwave radio transmissions, satellite videos and the Internet, through his website the Zundelsite, which is a platform for financing and contains White Supremacist documents as well as hyperlinks to other White Supremacist websites. The Security Intelligence Report concludes that based on the evidence that has been provided, Mr. Zündel is playing a critical role in the Movement, both in Canada and internationally.
[24] Documents issued by Mr. Zündel over the years show his intention to destabilize the legal and legitimate democratic government of Germany. The evidence also demonstrates a clear determination to disseminate copious amounts of documentation and information from Canada to Germany, using Canadian soil to advance his goal of undermining the German government.
[25] Furthermore, the Ministers have provided public and in camera evidence that Mr. Zündel has extensive involvement with contacts within the violent, racist, right wing movement. These contacts encompass individuals and organizations in Canada and abroad.
[26] Mr. Zündel has always supported the ideology of the White Supremacist Movement, one which is based on the fundamental belief that the white race is an endangered species in need of protection as a result of non-Whites and Jews seeking to attack the foundation of western civilization. Blacks in particular are seen as intellectually inferior, while Jews are viewed as conspiring to gain control of the world through manipulation of financial markets, the spread of communism, pornography and general moral degeneracy. The government is viewed with suspicion as it is seen to be controlled by a Jewish conspiracy referred to as zionist occupation government (ZOG). These fundamental beliefs lead to antisemitic, racist, anti-immigration, anti-democratic, anti-human rights and anti-homosexual attitudes.
[27] The Nazi Party under Adolf Hitler in Germany in the 1930s and 1940s is notoriously well known; what is less known, is the Canadian version which was developed over the 1940s and the 1950s under Adrien Arcand, who promoted Hitler as a saviour of Christianity and formed the Parti national social chrétien in the 1930s. That party then merged with the Canadian Nationalist Party from the West to form the National Unity Party. Later in the 1960s, the Canadian Nazi Party became the National Socialist Party and Mr. Zündel explained how he was influenced by Mr. Arcand himself whom he met when he arrived in Canada in the 1950s. At the conclusion of World War II, the enthusiasm of those Nazi parties around the world was greatly reduced; nevertheless, there still remained some desire to support this neo-Nazi approach. Mr. Zündel is among the few people that worked hard to maintain that support and who went to great lengths to try and establish some credibility to the neo-Nazi movement. He also tried by all means possible to develop and maintain a global network of all groups that have an interest in the same right wing extremist neo-Nazi mind-set.
[28] The Ministers filed as evidence a document by the Security Intelligence Review Committee (SIRC), entitled The Heritage Front Affair Report. The Ministers zeroed in on a particular part of this report and I quote:
Finally, we would like to put on the record our unshakeable conviction that the Government of Canada, through all means at its disposal, should continue to ensure that it is always aware of what is going on within extreme right wing racist and Neo-Nazi groups. Canadians should never again repeat the mistakes of the past by underestimating the potential for harm embodied in hate-driven organizations. (Section 13.12 of the SIRC document)
[29] In my decision on the detention review rendered January 21, 2004, I mentioned at paragraph 27:
...The Ministers have provided considerable evidence, that cannot be disclosed for reasons of national security, that Mr. Zündel has extensive contacts within the violent racist and extremist movement. Mr. Zündel stated in his testimony that he knew the following people slightly, or had professional contacts with them, or had interviewed them as a reporter. Information showed, rather, that he had dealt with them a great deal more, in some cases had funded their activities, and generally had maintained much closer ties than what he had admitted to in his examination or cross-examination. These contacts include Tom Metzger, Richard Butler, Dennis Mahon and William Pierce in the United States, Christian Worch, Ewald Althans, Gottfied Kuessel and Oliver Bode in Germany, Siegfried Verbeke in Belgium, Terry Long, Christopher Newhook, Tony McAleer, Bernard Klatt, Wolfgang Droege and Marc Lemire in Canada, Nick Griffin in Great Britain and members of South Africa's Afrikaner Resistance Movement. (Re Zündel, 2004 FC 86, [2004] F.C.J. No. 60, at paragraph 27)
[30] Mr. Zündel was given the opportunity to respond to these findings; he also had the possibility of providing witnesses that could address, explain and give a more adequate and real picture of his true relationship with these people. Mr. Zündel opted to pass up this opportunity and to keep the nature of his affiliation with these people private. Although for reasons of national security, I cannot expose in detail the discrepancies between what Mr. Zündel said and the information that I have received in camera from different sources, I will revisit some of these inconsistencies later in my analysis.
Mr. Zündel's Associations
[31] The relationships that Mr. Zündel has with the people identified in the Summary and in my decision rendered January 21, 2004, as well as the precise role that Mr. Zündel played within the White Supremacist Movement in Canada, spans a period of more than two decades.
[32] The analysis of the public documents provided by the Ministers and the evidence that was heard over the 43 days of public hearings in this case, depict a man who publicly, has always tried to demonstrate his opposition to violence.
[33] Nevertheless, for more than 20 years, Mr. Zündel continuously maintained close relationships with individuals around the world who are clearly identified as members of the White Supremacist Movement. Mr. Zündel admitted in his own testimony that through different means of communication, he is in touch with people in 42 countries.
[34] Mr. Zündel maintained a close association with Wolfgang Droege and even admitted that he believed Mr. Droege was involved in terrorist activities in the United States, including attempting to invade the small Republic of Dominica to establish a White Supremacist Government. Mr. Zündel's house on Carlton Street in Toronto was akin to a revolving door for Mr. Droege, as well as every other member of the White Supremacist Movement in Canada or from abroad. These members were always welcome at his house, which had transformed from a residence, into a command centre for people and organizations worldwide involved in the White Supremacist Movement.
[35] Furthermore, Wolfgang Droege and Marc Lemire, two successive presidents of the Heritage Front, spent a lot of time in Mr. Zündel's house. Mr. Lemire, the last known president of the Heritage Front, was working for Mr. Zündel part-time, and then full-time for many years until Mr. Zündel left for the United States.
[36] Mr. Zündel also maintained a close association with Terry Long and the Aryan Nations. Mr. Long was a very zealous activist in Canada, and was depicted as one of the most extreme of the leaders of the Aryan Nations, an organization founded by Richard Butler in 1974 that has among its goals, the elimination of Jews and all minorities, as well as the creation of a White homeland in the North Western United States.
[37] It is troubling to hear Mr. Zündel proclaim that he is defending freedom of expression and advocating the use of non-violence, while at the same time, spending most of his time working in close quarters with the most extreme individuals and organizations in the White Supremacist Movement.
[38] If, as Mr. Zündel claims, he is not on side with extremists, is not on side with people claiming that the Jews should be eliminated and is not on side with Canadian members of the Heritage Front that wanted to create a list of members of the Jewish Movement for future retaliation, then how can he agree to participate in a meeting of the Heritage Front as a guest speaker, surrounded and supported by members of extremist White Supremacist groups in Canada?
[39] If, as Mr. Zündel said, the Heritage Front, a group described as the most powerful racist gang to hit Canada since the real Nazis back in the Dirty Thirties, was not a good idea, then why would he hire the president of that organization, Mr. Lemire, as a part-time and then full-time employee in his own personal residence?
[40] If, as Mr. Zündel stated, Mr. Droege is a terrorist and was totally ill-advised with everything he has done, be it in the United States or as leader of the Heritage Front, then how can he allow him to enter his house on a daily basis?
[41] If, as Mr. Zündel claims, it is not a good idea to use websites to disseminate messages of racial hatred and incite violence in the pursuit of White Supremacist objectives and that it is not a good idea to post on the Internet a practical guide to Aryan revolution which included chapters on assassinations, terror bombings, sabotage and racial wars, then why would he qualify Bernard Klatt, the man responsible for posting this guide, as a gentle person, and maintain contact with Mr. Klatt over the years?
[42] If, as Mr. Zündel believes, Tom Metzger is a violent person involved in criminal activities and in promoting a campaign of hatred which led to the beating death of an Ethiopian immigrant by two skinheads in the United States, for which Mr. Metzger had to subsequently pay a $12.5 million judgment after being found responsible by a civil court of that beating, and if he disagrees with the kind of racist cartoons made by and promoted by Mr. Metzger, and if he thinks that the White Aryan Resistance Hate Page website, which depicted grotesque and disgusting pictures of Negro and Jewish cartoons is not a good idea, then why does he cooperate with Mr. Metzger, Mr. Butler and the Aryan Nations?
[43] If, as Mr. Zündel was well aware, Bela Ewald Althans was convicted, among other things of incitement to hatred under German law, and imprisoned after being found guilty of denying the Holocaust and insulting the state and the memory of the dead and if Mr. Zündel knew that the presiding judge has called Mr. Althans "a moral arsonist" who is not a violent man but is still just as dangerous to the community, then why did he keep Mr. Althans as his personal representative in Europe and in Canada to disseminate his publications and organize tours for him in Europe?
[44] If, as Mr. Zündel acknowledged, Dennis Mahon and the Oklahoma Excalibur were involved in extremist comments, even advocating revolution and a violent overthrow of the Canadian Government in a meeting in Canada in 1992, then why did he agree to assist Mr. Mahon in designing a cover page for his publication?
[45] These serious contradictions required explanation; if Mr. Zündel did not subscribe to the views expressed by all those people and organizations, then he should have clearly expressed, both publicly and privately, his total opposition to the kind of material, propaganda, violence and hatred promoted by those individuals and associations. I simply cannot accept the proposition that Mr. Zündel is a pacifist, while at the same time, he continues to maintain a close association and to support the above-mentioned extremists.
[46] In my view, although Mr. Zündel was not impressed by the lack of subtlety of those people and organizations, he nevertheless cooperated with them, feeling it was better to have some support, than to go it alone. But he simply cannot depict himself as a champion of free speech and of non-violence, while spending most of his time in touch with people who promote the opposite. Mr. Zündel could not forever sit on the fence, and in my view, he fell to one side. He decided to associate himself with all those people, including extremists and members of the White Supremacist Movement. The evidence spanning over more than two decades shows me that only one person, George Burdi, a prominent figure in the Canadian Movement, was excluded from Mr. Zündel's house; if Mr. Zündel had seriously intended to distance himself from those people and those organizations, all of them would have been excluded from his house. Maybe, rather than being an open and welcoming atmosphere, 280 Carlton Street would have been a revolving door to throw out those violent and extremist individuals, and to demonstrate a clear intention to distance himself from them.
[47] Rather, Mr. Zündel decided to keep a veil of uncertainty over the situation and lead the people in the White Supremacist Movement to believe that he was on their side, while leading all others to believe that he was opposing their extremist incitations to violence and hatred.
[48] That being said, a more in-depth look at the evidence is necessary. Mr. Zündel did not expose his real relationship with Mr. Droege. On the one hand, Mr. Zündel's testimony was that he never discussed Heritage Front matters with Mr. Droege, but that he was simply consulted by Mr. Droege on questions of history. On the other hand, Mr. Christie, former counsel for Mr. Zündel and a long-time friend, testified that when Mr. Zündel was with Mr. Droege, he spent much of his time admonishing him over his involvement with violent activities. I am convinced that Mr. Zündel was involved with Mr. Droege to a much larger extent than was presented by him and his witness. He knew very well that Mr. Droege was involved in the Heritage Front and other similar activities, yet Mr. Zündel still supported and provided him with advice on a continuous basis. In fact, I strongly believe that Mr. Zündel needed someone like Mr. Droege to maintain contact with the most extremist members of the Movement, while keeping for himself the more prestigious television program appearances, interview requests and podium speeches.
[49] I also have reservations concerning the scope of Mr. Zündel's knowledge of Mr. Lemire and his involvement in the Heritage Front. I believe that Mr. Zündel was well aware of Mr. Lemire's presidency and particularly of the efforts of Mr. Lemire, a computer expert, to develop websites to disseminate messages of racial hatred and to incite violence. Based on reliable evidence provided to me in camera, I believe that Mr. Zündel was in close association with Mr. Lemire, who was working full-time in Mr. Zündel's house until his departure for the United States in 2000. Furthermore, I also believe that Mr. Lemire had access to Mr. Zündel's website. Mr. Christie testified that Mr. Lemire was constantly admonished by Mr. Zündel about his behaviour; should I therefore believe Mr. Zündel's testimony that he never discussed Heritage Front business in his house with Mr. Lemire? In my view, Mr. Zündel and Mr. Lemire did in fact discuss Heritage Front matters in his house but most probably in Mr. Christie's absence.
[50] I am far from being convinced that the relationship between Mr. Long, Leader of the Aryan Nations, and Mr. Zündel, consisted of a single meeting during the past 15 years and was limited to a 10 minute encounter in Calgary. Rather, based on reliable evidence provided to me in camera, I believe that Mr. Zündel maintained a much closer association with Mr. Long over those years and that Mr. Zündel simply decided not to elaborate, nor to provide a truthful description of his real relationship with Mr. Long.
[51] In cross-examination, Mr. Zündel tried to reduce the importance of his relationship with members of the White Supremacist Movement such as Terry Long and John Ross Taylor. I think it is interesting to quote from the Kane v. Church of Jesus-Christ Christian-Aryan Nations, Albe