Kanaganayagam v. Canada (Minister of Citizenship and Immigration), 2004 FC 86

Date: 20040121

Docket: DES-2-03

Citation: 2004 FC 86

Ottawa, Ontario, January 21, 2004

Present:    The Honourable Mr. Justice Blais           

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

[1]                 On May 1, 2003, the Minister of Citizenship and Immigration and the Solicitor General of Canada (the "Ministers"), pursuant to section 77 of the Immigration and Refugee Protection Act ("IRPA") signed a certificate stating that Ernst Christof Friedrich Zündel ("Mr. Zündel"), a permanent resident of Canada, is inadmissible on grounds of security. Pursuant to subsection 82(1) of the IRPA, the Ministers issued a warrant for Mr. Zündel's arrest on May 1, 2003, under which he has been detained since.

[2]                 In my capacity as a designated judge pursuant to section 76 and subsection 83(1) of the IRPA, I commenced reviewing the continuance of the detention within 48 hours of Mr. Zündel's arrest. The only issue to be decided in this case is whether the detention of Mr. Zündel should be continued, pending the decision on the reasonableness of the security certificate.

LEGISLATION

[3]                 The following provisions of the IRPA apply to this case.

[4]                 A certificate has been issued by the Ministers declaring Mr. Zündel inadmissible, under subsection 77(1):

[5]                 Mr. Zündel is being detained pursuant to subsection 82(1):

[6]                 Mindful of the rights of any detainee, the IRPA provides for a review within 48 hours of the detention.

[7]                 Two criteria apply to the continuance of the detention, as provided for in subsection 83(3):

ANALYSIS

[8]                 It should be noted from the start that the grounds to continue the detention are much narrower than the grounds of inadmissibility. Whereas inadmissibility defined in sections 33 to 37 covers more than security and includes such grounds as human rights violations or criminality, the test for continued detention requires the designated judge to consider only two criteria:

a)         whether the person detained is a danger to national security or to the safety of any person, and

b)         whether the person is unlikely to appear at a proceeding for removal.

1)         Whether Mr. Zündel is a danger to national security or to the safety of any person.

[9]         The sections of the IRPA covering the certificate and the detention to which Mr. Zündel is now subject are found in Division 9 - Protection of Information. For the purposes of this part of the IRPA, information is defined as follows in section 76:

[10]            Implicit in the way the Act is structured is the assumption that the certificate will be based at least in part on information which may, for security reasons, remain secret. Only the judge has access to this information. The person for whom the certificate is issued or his counsel may not have access to the information, if its disclosure would be injurious to national security or to the safety of any person. However, pursuant to subsection 78(h),

[11]            The Ministers submitted information which for reasons of national security cannot be disclosed. Mr. Zündel and his counsel were provided with a summary of this information, pursuant to subsection 78(h) of the IRPA. For the public component of their evidence, the Ministers presented no witnesses, and Mr. Zündel or his counsel had no opportunity to cross-examine any of the authors of the voluminous documentation submitted as evidence.

[12]            The nature of the evidence, kept partly secret, and the fact that no cross-examination was possible for Mr. Zündel mean that I must be particularly careful in assessing the evidence presented and determining what weight it should be given. In addition to his usual role of impartiality, the judge in such a situation must examine with particular thoroughness all the evidence which is presented to him without the benefit of the other party testing its credibility. Other judges of this Court have been placed in a similar discomforting position, where the public interest of an open court collides with the needs of national security. I wish to make it clear that the additional burden placed on the judge is not taken lightly. The information that was presented to me in camera was reviewed with intense scrutiny, and was carefully weighed, with an eye to the quality and number of sources of information.

[13]            That being said, I have come to the conclusion, based on the information presented to me in camera, that Mr. Zündel does represent a danger to the security of Canada, and should remain in detention for the time being. In writing the present reasons, I am constrained by the reality of national security reasons which impede giving full expression to the grounds for continuing the detention. However, to the extent that this is possible, I wish to explain a little further my reasons for maintaining the detention.

[14]            Before giving my reasons, I wish to state that the issue of the reasonableness of the certificate still has to be ruled upon, and that the instant decision does not decide the matter. For the time being, I wish to be prudent, and sufficient information has been shown to me to support the idea that the Ministers "have reasonable grounds to believe that the permanent resident is a danger to national security". The determination as to whether the certificate is reasonable will be for another day.

[15]            Given the wording of subsection 83(3), "A judge shall order the detention to be continued if satisfied that the permanent resident continues to be a danger...", it seems clear that the onus is on the Ministers to prove that the permanent resident presents a danger. The warrant issues if the Ministers have "reasonable grounds to believe" according to the wording of subsection 82(1).

[16]            In Charkaoui (Re), [2003] F.C.J. No. 1119, Justice Noël of this Court had to deal with exactly the same provisions and had to decide on whether to maintain the detention of Mr. Charkaoui, a Moroccan citizen for whom a certificate had issued and who was being detained pursuant to section 82(1). He states thus the applicable standard of proof, at para. 39:

Thus, the designated judge is not to look for proof of the existence of the facts but rather to analyze the proof as a whole while asking himself whether it is sufficient for a person to have a reasonable belief that there is a danger to national security or the safety of any person or that the respondent will avoid the procedure or removal. Although it is not at the level of the preponderance of probabilities, this standard must tend toward a serious possibility of the existence of facts based on reliable and justifiable evidence. To this effect, Mr. Justice Evans of the Court of Appeal wrote, in Chiau v. Canada (M.C.I.), [2001] 2 F.C. 297, at paragraph 60:

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 (F.C.A.).

[17]            The standard is thus defined as "a bona fide belief in a serious possibility based on credible evidence". If the Ministers provide sufficient evidence to demonstrate that detention must be continued for reasons of national security or to ensure the safety of any person, the onus shifts to Mr. Zündel to provide evidence to challenge the conclusion that detention should be maintained. I understand the predicament for Mr. Zündel and his counsel caused by not being apprised of all the evidence against Mr. Zündel. However, Mr. Zündel had the opportunity to present evidence, and knew that the gist of the case against him was his link to individuals and groups who advocate violence against certain groups in our society. In this case, my conclusion is that the Ministers have met their burden, and that Mr. Zündel has not.

[18]            In Charkaoui, supra, there were serious gaps in the history of the respondent. Although the evidence presented by witnesses in favour of the respondent was compelling, Justice Noël points out that the evidence is recent, and does not explain a period of Mr. Charkaoui's life where he is suspected of having linked up with terrorist elements. The evidence points to a "sleeper" situation, and Justice Noël finds a serious possibility based on credible evidence. Because of the secret nature of part of the evidence, Justice Noël emphasizes the care which must be applied by the judge in reviewing such information.

[19]            Similarly, in Mr. Zündel's case, there are gaps that need to be explained. Mr. Zündel's activities have in large part been public. In the context of these public endeavours, Mr. Zündel has never advocated violence. This has been the basis of his position throughout the hearing. How can defending ideas, however unpopular or insulting, pose a safety concern for Canada? After all, argue his lawyers, Mr. Zündel has been repeating the same things for over twenty years, and he has never been prosecuted for any crime, including hate propaganda. He was charged with an offence - spreading false news - which the Supreme Court has since declared unconstitutional (see R. v. Zundel, [1992] 2 S.C.R. 731). The Canadian Human Rights Tribunal has ordered him to change the content of the Zundelsite (see Citron v. Zundel, [2002] C.H.R.D. No. 1) but, again according to his lawyers, a regulatory offence hardly amounts to a threat to national security.

[20]            However, there are reasonable grounds to believe that Mr. Zündel is a danger to national security or to the safety of any person. Although Mr. Zündel has virtually no history or direct personal engagement in acts of serious violence, his status within the White Supremacist Movement is such that adherents are inspired to carry out his acts in pursuance of his ideology. The Ministers believe that by his comportment as leader and ideologue, Mr. Zündel intends serious violence to be a consequence of his influence.

[21]            The public evidence on Mr. Zündel, it must be stated, might not be sufficient to determine that he is a threat to the security of Canada. The fact that his publications are found among other items seized when police raid violent, extremist groups, is also not sufficient. Mr. Christie rightly denounced the rational fallacy found in the Ministers' memorandum - extremists read Mr. Zündel's publications, and commit violent acts, and therefore a link should be found between the two.

[22]            Such is not the nature of the information which I am not at liberty to disclose. Rather, it is a matter of contradiction between what Mr. Zündel chose to answer in cross-examination when he had the opportunity to state clearly what his relationship was with various groups and individuals who have been convicted of violent crimes, and the reality of these relationships.

[23]            Mr. Zündel was questioned about a number of people who are part of dangerous and violent movements, here and abroad, and in every instance, he characterized the relationship as basically superficial, transient, without consequence, and with no funding involved. There is too much evidence to ignore what is obvious. What I have seen in camera, and what I heard in Court from Mr. Zündel, are completely at odds. Mr. Zündel wields much more power within the right-wing, extremist and violent movement known as the White Supremacist Movement (however defined, the only concern for me being the danger it represents to society) than he lets on. He would have us believe that he is only interested in ideas, and that others use his ideas as they see fit, a situation for which he cannot be responsible.

[24]            The information made available to me paints an entirely different picture. Mr. Zündel is not the avuncular figure looking on with some indulgence on the wayward excesses of some misguided souls who fail to understand his message of non violence. The evidence points to his own direct involvement with groups he pretends to know very little about.

[25]            In various decisions dealing with the security certificate or the related detention, this Court has had to grapple with the problem of a person who presents externally the profile of a peaceful citizen, while maintaining contacts with individuals or groups that are known to be terrorist or to advocate violence. As I stated in Re Ikhlef, [2002] F.C.J. No. 352, at para. 57: "Tell me who your friends are, and I will tell you who you are". Mr. Zündel states that this kind of reasoning is to make him "guilty by association". I agree that one must be careful to not confuse acquaintance and complicity. But once again, the test here is one of reasonable belief, and I believe the test has been met. In fact, surpassed. Mr. Zündel represents a threat that far exceeds simple guilt by association.

[26]            In several decisions (MCI v. Singh, [1998] F.C.J. No. 1147; MCI v. Mahjoub, [2001] 4 F.C. 644; Re Ikhlef, [2002] F.C.J. No. 352; Re Jaballah, [2003] F.C.J. No. 822) this Court came to the conclusion that the person named in the certificate had in fact much closer contacts with various senior operatives of terrorist organizations than he had admitted. In each case, the respondent would state not knowing, or knowing very vaguely, persons that were known terrorists or known senior members of terrorist organizations. There comes a point where one must wonder why someone who knows a person only vaguely would be called or consulted. It strains credulity to think that when in the presence of persons known to the authorities for violent and illegal activities, only mundane issues are discussed, never politics, never any actions or activities. In Re Jaballah, supra, for instance, Justice MacKay states, after reviewing both public and in camera evidence that Mr. Jaballah had, in fact, significant contact with terrorist groups,

The inference drawn and now strengthened by the new information is one adverse to Mr. Jaballah, that unless he was a senior AJ-Al Qaida operative, he could not have had contact with so many others who were senior members and active in those organizations. (para. 85, emphasis added)

[27]            There is a parallel to be drawn with Mr. Zündel's case. 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.

[28]            Mr. Zündel knows Wolfgang Droege, another "acquaintance" and co-founder of the Heritage Front. Mr. Droege, before coming to Canada and founding the Heritage Front, was convicted and sentenced to three years' imprisonment in the United States for an attempted coup on Dominica. Mr. Zündel maintains that he and Mr. Droege only discussed history matters. I find this difficult to believe, if only because of frequent contacts with Mr. Droege and the latter's rather active role in terrorist activities.

[29]            Mr. Zündel would have us believe that he knew Marc Lemire for the "photocopying work" Mr. Lemire did for him. Yet Marc Lemire has been and still is very active in Heritage Front, which he now leads, and an active participant in internet services, notably the "Freedom Site" which offers links to extreme right-wing groups of Canada. Marc Lemire has in fact received financial assistance from Mr. Zündel, and again, I believe the nature of their relationship is much closer than what Mr. Zündel admits. I find somewhat unbelievable that they would never have discussed any matter related to Heritage Front or the internet, given their presence in cyberspace through various sites. Similarly, I believe Mr. Zündel had more extensive contacts with Bernard Klatt, a computer expert who provided internet services to various extremist groups, than what Mr. Zündel stated.

[30]            It is obvious that Mr. Zündel has provided a pale reflection of the real relationship he has had for decades with the individuals named above and others identified in the documents filed as evidence by the Ministers, individuals who have been involved in violent, criminal activities. One finds in their words and actions always present a common thread: hatred of Jews, hatred of nonwhite minorities, a claim that Whites are threatened by our multicultural society. Mr. Zündel may deny that he advocates violence, but he cannot deny that he espouses the same ideas as extremist violent groups. The information provided in camera by the Ministers to this Court goes further: Mr. Zündel in many cases pulls the strings that lead to violent actions.

[31]            I am convinced that Mr. Zündel was well aware of the outcome of his publications and public comments. Moreover, he knew in advance when certain activities, actions, demonstrations would occur, where skinhead elements would be involved with little restraint or indeed, with encouragement from the more staid members of the movement who would pretend not to know and not to approve of those actions. Not only did he know ahead of time, he was often involved in the planning.

[32]            Mr. Zündel, from all the evidence I have seen, seems to want to have it both ways: he wants to be seen as a thinker who rejects violence as a means of gaining power, yet he does nothing to distance himself from groups and individuals, here and abroad, who have been involved in violent activities and still are. Thus, while overtly condemning the use of violence, he covertly condones it by maintaining his contact and credibility with groups that advocate and engage in violent acts.

[33]            The Supreme Court of Canada defined in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at para. 90, what constitutes "danger to the security of Canada" :

...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 dependent 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.

[34]            The constraints of national security have made the Ministers unable to show public evidence to link Mr. Zündel to any of the violent acts that have been committed by extremist, racist groups. The information that has been provided to me, however, has satisfied me that there are reasonable grounds to believe that such a link exists. I am also satisfied that there are reasonable grounds to believe that if Mr. Zündel were freed from detention, he would be able to reestablish links with groups that present a threat to the security of Canada.

2)         Whether Mr. Zündel is unlikely to appear at a proceeding for removal.

[35]            According to subsection 83(3) of the Act, the detention shall be continued either if the person concerned represents a threat to the security of Canada or the safety of anyone, or if the person is unlikely to appear at a proceeding or for removal. Since either condition, based on reasonable grounds, is sufficient to maintain detention, it is not necessary for me to determine whether or not Mr. Zündel would be likely to appear at any further proceeding. I will, however, make the following comments.

[36]            Mr. Zündel argues that he has never failed to comply with whatever bail conditions have been imposed in the course of his various proceeding before Canadian courts. When a deportation hearing was held, he appeared.

[37]            The Ministers, for their part, argue that Mr. Zündel is unlikely to appear at a proceeding for removal, for three reasons: the little faith he places in the German legal system, where he stands to be prosecuted if he is deported there; his disparaging comments about the Canadian Human Rights Tribunal, which shows the contempt he has for the judicial system in general. Finally, his visa problems in the United States, which show his unwillingness to comply with whatever requirements a state may impose on its residents.

[38]            I am not convinced by the Ministers' arguments on this point. Mr. Zündel's past behaviour shows that so far he has respected whatever conditions have been imposed, and his opinions of the various judicial systems are not at issue. I am uncertain of the significance of the fact that he did not comply with the American requirements for visa renewal. It is difficult for me to understand why Mr. Zündel would deliberately sabotage his own endeavour to become a permanent resident of the United States, where his wife resides and where the Zundelsite is not subject to any regulations as is the case in Canada. If Mr. Zündel had meant to escape the consequences of his actions or omissions, he would not have remained at home, where the American authorities had no trouble finding him. On the face of it, his explanations of a misunderstanding would appear more convincing than some devious plan to avoid visa compliance requirements.

[39]            I believe that one significant factor has been omitted by both sides: the fact that the temptation for Mr. Zündel not to appear would be much greater than it has been in the past. If the certificate is held to be reasonable, no appeal is possible, and a removal order is then in force. Mr. Zündel this time faces more than deportation: he faces certain prosecution in Germany. The German Government has already laid charges against him, charges that he will face if and when he returns to Germany. This is a factor which would seem to deserve some consideration. However, as I stated, the threat to national security is sufficient in itself to justify continuing the detention.

                                                                          O R D E R

THIS COURT ORDERS:

The detention of Mr. Ernst Zündel is to be continued.

                    "Pierre Blais"                                                                                                                                    J.F.C.

                                                                 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:                       November 6, 7, December 10, 2003

REASONS FOR ORDER              The Honourable Mr. Justice Blais

AND ORDER:

DATED:                                                January 21, 2004

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.

Peter Lindsay & Chi-Kun Shi

Barristers and Solicitors

Toronto, Ontario