Zündel, Re, 2003 FC 1484

Date: 20031217

Docket: DES-2-03

Citation: 2003 FC 1484

Ottawa, Ontario, December 17, 2003

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]                 The respondent Ernst Zündel has filed a motion for an order of recusal. Mr. Zündel submits that I should recuse myself because as Solicitor General in 1989, I was the Minister responsible for CSIS before Parliament. Mr. Zündel also alleges that certain of my comments on a book introduced in evidence show my favourable bias to CSIS.

[2]                 Mr. Zündel argues that I should have recused myself from the start, because having been responsible for CSIS I would not be able to be impartial in dealing with a matter where CSIS provides a great deal of evidence. Moreover, some of this evidence is confidential and neither Mr. Zündel nor his lawyers have access to it. Therefore, according to Mr. Zündel, there is a reasonable apprehension of bias, because of both my former connection to CSIS and the nature of the evidence presented against Mr. Zündel.

[3]                 The Ministers have responded by arguing on both a technical and substantive basis. On the technical side, the Ministers submit that the motion was not properly constituted, having been introduced without written representations and supported by an affidavit which contains not only facts but allegations and arguments.

[4]                 As to the substantive issues, the Ministers argue that the doctrine res judicata applies, since this is the second motion brought for recusal, and none of the facts on which it is based occurred after the first motion. Moreover, the Ministers also suggest that there are no serious grounds for a reasonable apprehension of bias, a very serious allegation which requires that the person alleging reasonable apprehension of bias meet a very high threshold. The Solicitor General, although responsible for CSIS before Parliament, has under the Act very little direct, daily involvement with CSIS affairs, which come under the Director. It is thus unlikely that as Solicitor General I would have been directly involved in any activity concerning Mr. Zündel. The Ministers further argue that the passage of time, following the Supreme Court decision in Wewaykum Indian Band v. Canada [2003] S.C.J. No. 50 ["Wewaykum"], certainly applies in this case. Finally, the Ministers contend that there was no requirement to disclose, since I was not in a relationship with CSIS that would raise a reasonable apprehension of bias.

[5]                 There are four main grounds for dismissing this motion for recusal: the doctrine of waiver, the irrelevance of the evidence, the passage of time and the presumption of impartiality.

1) Waiver

[6]                 The fact that I was Solicitor General in 1989 was a matter of public record from the start. A quick perusal of the Federal Court website would indicate the inclusion of that fact in my biography. I did not believe, and I still do not, that having been Solicitor General thirteen years ago, at a time when right-wing extremist groups were not a pressing policy concern for Canada, would have any bearing on a hearing for which I was appointed in 2003.

[7]                 If the matter is of concern to Mr. Zündel, then it should have been raised at the start of these hearings, not now, not after six months have gone by.

[8]                 In Re Human Rights Tribunal and Atomic Energy of Canada Ltd., [1986] 1 F.C. 103, leave to appeal dismissed, (1986), 72 N.R. 77, MacGuigan J.A. stated at pp. 112-113 of that case:

The only reasonable course of conduct for a party reasonably apprehensive of bias would be to allege a violation of natural justice at the earliest practicable opportunity. Here, AECL called witnesses, cross-examined the witnesses called by the Commission, made many submissions to the Tribunal, and took proceedings before both the Trial Division and this Court, all without challenge to the independence of the Commission. In short, it participated fully in the hearing, and must therefore be taken impliedly to have waived its right to object.

[9]                 In Zündel v. Canada (Canadian Human Rights Commission) (re Canadian Jewish Congress) [2000] F.C.J. No. 1838, the Federal Court of Appeal presents the doctrine of waiver in a case of reasonable apprehension of bias as follows, at paragraph 4:

At common law, even an implied waiver of objection to an adjudicator at the initial stages is sufficient to invalidate a later objection: Re Thompson and Local 1026 of International Union of Mine, Mill and Smelter Workers et al. (1962), 35 D.L.R. (2d) 333 (Man. C.A.); Rex v. Byles and others; Ex parte Hollidge (1912), 108 L.T. 270 (Eng. K.B.D.); Regina v. Nailsworth Licensing Justices. Ex parte Bird, [1953] 1 W.L.R. 1046 (Eng. Q;B.D.); Bateman v. McKay et al., [1976] 4 W.W.R. 129 (Sask. Q.B.). The principle is stated as follows in Halsbury's, Laws of England (4th ed.), volume 1, paragraph 71, page 87:

The right to impugn proceedings tainted by the participation of an adjudicator disqualified by interest or likelihood of bias may be lost by express or implied waiver of the right to object. There is no waiver or acquiescence unless the party entitled to object to an adjudicator's participation was made fully aware of the nature of the disqualification and had an adequate opportunity of objecting. Once these conditions are present, a party will be deemed to have acquiesced in the participation of a disqualified adjudicator unless he has objected at the earliest practicable opportunity.

[10]            In that case, the Federal Court of Appeal ruled that since the grounds for objection existed from the outset, being part of the Act, they should have been raised at the start of the hearings. In the case at bar, my mandate as Solicitor General in 1989 was a matter of public record, and appeared as public information on the Federal Court website and also other public books of reference like Canadian Who's Who, Canadian Parliamentary Guide, International Year Book and Statesmen's Who's Who. The fact that the applicant in this motion only recently found out is of no concern to this Court. Mr. Zündel has presented evidence, called witnesses and presented an earlier motion for recusal based on other grounds. It appears to me that Mr. Zündel waived his right to challenge my designation on the basis of my former duties as Solicitor General.

[11]            Mr. Zündel contends that I should have made the parties aware of my term as Solicitor General in 1989. Mr. Zündel seems to imply that my situation would be one of automatic disqualification, where, because of a conflict of interest, I should disqualify myself.

[12]            The most recent authority on this issue is the decision of the House of Lords in R. v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (no. 2), [1999] 2 W.L.R. 272, where the House of Lords had to decide whether one of the Lords sitting on the Appellate Committee had been automatically disqualified. The Appellate Committee of the House of Lords had had to rule on whether General Pinochet, accused in Spain of crimes against humanity, was extraditable from Great Britain or whether he was protected by diplomatic immunity. The Committee ruled in favour of extradition in a split 3-2 decision. One of those who supported the ruling was Lord Hoffman. The lawyers for General Pinochet discovered after the ruling that Lord Hoffman was Director and Chairperson of Amnesty International Charity Limited ["AICL"], a registered charity incorporated in 1986 to fund the charitable aspects (according to U.K. law) of the work of Amnesty International Limited.

[13]            In the hearings before the Appellate Committee, Amnesty International ["AI"] was an intervener. Moreover evidence showed that AICL had funded research by AI on the situation of human rights abuses in Chile and non-prosecution of parties thought to be responsible for these abuses. The House of Lords ruled that Lord Hoffman had to be disqualified. This was not a matter of bias or apprehension of bias. Rather, because he was directly involved in AI's work, Lord Hoffman was automatically disqualified. In the words of Lord Goff of Chieveley, concurring in the judgment:

¶ 51       It is important to observe that this conclusion is, in my opinion, in no way dependent on Lord Hoffmann personally holding any view, or having any objective, regarding the question whether Senator Pinochet should be extradited, nor is it dependent on any bias or apparent bias on his part. Any suggestion of bias on his part was, of course, disclaimed by those representing Senator Pinochet. It arises simply from Lord Hoffmann's involvement in AICL; the close relationship between AI, AIL and AICL, which here means that for present purposes they can be regarded as being, in practical terms, one organisation; and the participation of AI in the present proceedings in which as a result it either is, or must be treated as, a party.

[14]            In such a case, it is clear that the involvement was so close that the principle became one of nemo judex in su propria causa. In the case at bar, the situation is completely different. There is no conflict of interest, given the time that has passed and the complete absence of involvement with CSIS in the last thirteen years. A judge would have the duty to disclose a present conflict of interest, but not a reasonable apprehension of bias based on past connections. The reasonable apprehension of bias necessarily arises (when it does) in the mind of one of the parties before the judge. The judge may raise it to avoid the issue being brought up later, but in the instant case, there was no reason for the judge to bring it up, for the same reasons as there was no reason for Justice Binnie to do so in Wewaykum supra, namely, no recollection whatsoever of the matter during his term.

2) Irrelevance

[15]            A good part of the CSIS actions in the context of the white supremacist movement occurred largely outside the time of my mandate as Solicitor General. In support of his affidavit, Mr. Zündel presents a number of documents dealing with CSIS activities. These do not concern the period of time when I was Solicitor General. In his affidavit, Mr. Zündel takes issue with the fact that as Solicitor General in 1989 I issued a direction to CSIS regarding the use of human sources. Mr. Zündel then states that the Security Intelligence Review Committee ["SIRC"] in its Report on the Heritage Front Affair, presented to the Solicitor General on December 9, 1994, considered the directions I had issued and regarded them as "seriously deficient". As a matter of fact, the Report of SIRC was written in 1994, and states "...current directions from the Solicitor General and the Director should be expanded and improved...". This, after a change of government, and three Solicitors General later. I cannot be held responsible for the directions from the Solicitor General which were current in 1994.

[16]            It is probably worthwhile to reproduce the exact passage from the SIRC Report on the Heritage Front Affair where the words "seriously deficient" appear. It should be noted that this whole issue has nothing to do with Mr. Zündel.

13.11 Ministerial Direction - CSIS and Policies Concerning

All human source activities are governed by the limits of the CSIS Act and direction issued by the Solicitor General under section 6(2) of the CSIS Act. It is also governed by CSIS internal direction in the CSIS Operational Manual. In their directions to sources, CSIS officers are bound by the limits of sections 2 and 12 of the CSIS Act.

Under the CSIS Act, the Minister can provide written direction to the Service. On October 30, 1989, the then Solicitor General [Pierre Blais] released comprehensive guidelines for the use of Human Sources. In the direction, the Minister notes that "a special responsibility rests with the Service to do everything reasonable to ensure that its confidential sources operate within the law, and do not behave so as to bring discredit on the Service or the Government".

The Minister further stated that confidential sources shall be instructed not to engage in illegal activities in carrying out their work on behalf of the Service and that they should be instructed not to act as 'agents provocateurs' or in any way incite or encourage illegal activity.

However, the level of policy guidance available to CSIS officers is, we believe, seriously deficient.

We believe Direction and Policy in this area should be re-examined. It should at a minimum provide full assistance to CSIS staff by providing thoughtful answers to a number of important questions. Among them:

* what kind of a proactive role is acceptable for a source in an organization targeted by CSIS?

* is it appropriate to have a source direct or be a leader within an organization or movement?

* should sources be engaged in counter measures which would serve to destroy, rather than maintain terrorist groups or movements?

* do the benefits of maintaining a source outweigh the benefits to be gained by taking measures (i.e. with Police Forces) to destroy the group?

(...)

Our investigation of the Heritage Front Affair made us aware of the fact that there was insufficient policy direction available. For example, we observed no clear direction concerning what was taking place in relation to the harassment campaign; there was no "global picture" of what was going on.

We consider that the Service should regularly draw up a "balance sheet" on the benefits of a particular source operation. In other words, the management and staff associated with a high level source should regularly stand back from day-to-day transactions to assess the operation in its totality. To a certain extent this takes place during the application process for the renewal of targeting authorizations. But in the current case, a major activity of the Source, the "IT" campaign, was not brought before Senior Management and so was not discussed; we think that this was an important oversight.

Our conclusion is that current directions from the Solicitor General and the Director should be expanded and improved to deal with some of the issues we have described. [emphasis added]

[17]            Every year, SIRC reports to the Solicitor General on the activities of CSIS, around the end of September. The SIRC's mandate is to review the legality of CSIS' actions, and to carry out this mission, it has access to all of the information available to CSIS.

[18]            No mention of the white supremacist movement is made in any of the reports until the 1994-1995 annual report, which follows the special report on the Heritage Front Affair presented on December 9, 1994. This latter report makes clear that from its inception, CSIS watched closely the activities of what it considered potentially dangerous right-wing extremists. This activity, however, was never mentioned by SIRC, although other potentially controversial areas are exhaustively explored, such as the surveillance of the native movement or of the labour unions.

[19]            Report by SIRC to the Solicitor General on December 9, 1994 on the Heritage Front Affair:

The targeting of the white supremacist movement, since the establishment of CSIS, has been reviewed continuously since 1985. The individual targets have changed, and the scope of the investigations has narrowed and then recently expanded again. Over the years, a considerable number of people in positions of authority, both in government and the judiciary, have known of and approved the Service's operations in this area.

The list of those who have scrutinized the targeting of individuals in the white supremacist movement since the creation of CSIS includes: seven Solicitors General; four Inspectors General; twelve members of the Security Intelligence Review Committee; and four Directors of CSIS. In addition, judges of the Federal Court have granted warrant powers to the Service to investigate in this area.

[20]            According to the Report, those who were targeted by CSIS were those who were suspected of violent activities, such as Wolfgang Droege or Tom Long. Ernst Zündel might have been a target of surveillance by CSIS as early as 1989, but this information, as far as I can recall, was not disclosed to the Solicitor General at that time. Other issues were more pressing in 1989, and this is clear from the SIRC Report for 1988-1989, the only year I received one as Solicitor General of Canada.

[21]            In the Heritage Front Affair Report, I find the following passage on the targeting of right-wing extremists for surveillance rather telling:

The Service also sought to develop human sources close to the extreme-right in order to ascertain the white supremacist strategy. CSIS sought to differentiate its investigation from criminal investigations.

In March 1991, TARC [Targeting Approval and Review Committee] added a significant condition:

"The range of investigative techniques to be deployed under this authorization will be subject to consultation with the Minister."

From this point on, the Service was required to send an aide-memoire to the Solicitor General - prior to implementing the TARC Certificate.                  [emphasis added]

[22]            Most of the CSIS activities concerning the handling of the Source within the white supremacist movement, reported in the Heritage Front Affair Report, occurred after I had ceased being Solicitor General. Moreover, evidence shows that the infiltration of the Reform Party by Heritage Front was known to CSIS, but not to the Solicitor General of the day (the Honourable Doug Lewis).

[23]            The Subcommittee of the House on National Security produced a report on the Heritage Front Affair, and the Bloc Québécois and Reform Party members of the Subcommittee produced a joint dissenting report. In both these reports, the only mention that is made of my actions as Solicitor General is the issuance of a direction that sought precisely to ensure the greatest respect for rights and freedoms (it was modified in August 1993 by the Minister then in office).

[24]            From the dissenting report at para. 20:

In the view of the opposition members of the Subcommittee, the leadership of the extreme right and its most prominent emerging organization, the Heritage Front, were appropriately targeted in the initial stages of the refocused investigation [targeting Wolfgang Droege when he returned to Canada in 1989].

At para. 27:

However, there came a time, as indicated in the preceding section of this Report, when it was concluded in a 1990-1991 submission to TARC that extreme right organizations and their related activities were petty criminal in nature and did not constitute a threat to the security of Canada. It is not clear to the opposition members of the Subcommittee why the Service did not simply refer these matters to law enforcement agencies, rather than redirecting the investigation and the Source for more than an initial period to the leadership of the extreme right wing. The key question is what was the justification for the continued targeting and the presence of the Source after 1990.      [emphasis added]

[25]            Need I remind Mr. Zündel that I no longer had anything to do with CSIS by that time. I was Solicitor General from January 30, 1989 to February 22, 1990. The Honourable Pierre Cadieux was appointed on February 23, 1990. From 1991 to 1993, the Solicitor General of Canada was the Honourable Doug Lewis. With the change of government in 1993, a new Solicitor General was appointed, the Honourable Herb Gray. In 1993, I returned to private practice. In 1998, I was appointed to the Federal Court.

[26]            In Wewaykum, supra, the Supreme Court of Canada dealt with an allegation of reasonable apprehension of bias brought by the Campbell River Band and the Cape Mudge Band against Justice Binnie, who had written the unanimous judgment of the Court dismissing the Bands' appeals in a land claim case where each Band claimed the reserve occupied by the other. Fifteen years earlier, as Associate Deputy Minister of Justice from 1982 to 1986, Mr. Binnie, as he then was, had had occasion to deal with the claims by giving policy advice on the matter, which came under his jurisdiction. "As Associate Deputy Minister of Justice, Binnie J. was responsible for all litigation involving the government of Canada, except cases originating from the province of Quebec and tax litigation. He also had special responsibilities for aboriginal matters." ["Wewaykum" para. 5]. The Bands sought an order to have the judgment set aside.

[27]            The motion was dismissed by the eight sitting judges of the Court (Justice Binnie having recused himself from the matter). The case is relevant here for its in-depth discussion of what constitutes a reasonable apprehension of bias for a former Crown Minister who hears a case which once came under his ministerial authority.

[28]            The Court restates the well-known test for reasonable apprehension of bias (at para. 60):

In Canadian law, one standard has now emerged as the criterion for disqualification. The criterion, as expressed by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, supra, at p. 394, is the reasonable apprehension of bias:

... 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. In the words of the Court of Appeal, that 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.

[29]            The Court notes (at para. 77) that "this is an inquiry that remains highly fact-specific". There are no hard and fast rules that apply, and the circumstances of the case must be examined carefully.

[30]            In the case at bar, we find two factors that were present in the Wewaykum: the extent of the involvement with the parties in the proceedings, and the passage of time. In the case of Justice Binnie, several memoranda were produced to show that he had been made aware of the situation of the claims. His response was that, frankly, he could not remember dealing with those issues. His responsibilities covered literally thousands of files. Once he had left the public service, his mind had turned to other matters. His consideration of the case before the Supreme Court was therefore fresh and unbiased.

[31]            The same holds true in my case. Hundreds of issues, only a fraction of which are related to CSIS, are brought to the attention of the Solicitor General on a weekly basis. I cannot remember them all, and I certainly do not remember Mr. Zündel's case. The SIRC reports show that the extreme right movement was not a matter of pressing concern at the time I was Solicitor General. Things changed during the early 90s, but I was no longer at the helm.

[32]            The most direct link that has been argued is the Ministerial Direction of October 1989. It was basically a reminder to CSIS to respect the law and the "most sensitive institutions of our society". The SIRC report on the Heritage Front Affair as well as both the majority and minority reports of the Subcommittee of the House all indicate that CSIS failed to follow the Direction on the handling of sources given in 1989. I cannot fathom how that fact can be invoked to support a reasonable apprehension of bias.

[33]            Mr. Zündel presents the evidence from Paul Kennedy, Senior Assistant Deputy Solicitor General of Canada for National Security, who appeared before the Subcommittee on National Security of the Standing Committee on Justice and Human Rights of the House of Commons, on June 3, 2003, to introduce the ministerial directions from the Solicitor General for the year. Mr. Kennedy details the involvement of the Solicitor General in the affairs of CSIS, although he does state that day-to-day activities come under the Director of CSIS. I do not find this evidence very useful for our purposes. Obviously, the Solicitor General needs to be kept abreast of what is happening in his department; that is the meaning of responsible minister. It does not make it likely that I would remember details of investigations thirteen years later, nor does it make bias more probable. And I would add that in the reports to Parliament by SIRC and the House Subcommittee for the years 1989 to 1995, there are many instances where the deficiencies which are flagged relate precisely to the lack of information given to the various Solicitors General of the time.

3) Passage of time

[34]            One of the main points which Chief Justice McLachlin emphasizes in Weywakum, supra, related to the importance of being fact-specific, is the passage of time in the case of Justice Binnie (at para. 85):

To us, one significant factor stands out, and must inform the perspective of the reasonable person assessing the impact of this involvement on Binnie J.'s impartiality in the appeals. That factor is the passage of time. Most arguments for disqualification rest on circumstances that are either contemporaneous to the decision-making, or that occurred within a short time prior to the decision-making.

[35]            The Court quotes the English Court of Appeal [Locabail (U.K.) Ltd. v. Bayfield Properties Ltd., [2000] Q.B. 451 at 480] at para. 86:

... every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.

[36]            I would think the same consideration would apply here. I have had no contact with CSIS in an official capacity in thirteen years. Over the course of these thirteen years, a number of Solicitors General have followed, the party in power has changed, in short, I no longer know what are the policies operating within CSIS, no more than any other Canadian citizen. Moreover, this link has been severed for a very long time.

[37]            Mr. Zündel argues that this argument cannot stand, since the allegations against him go back in some instances to 1981. In the Wewaykum case, the history of the claims also went back in time to even before Justice Binnie was responsible for all federal litigation. That is not the point. What needs to be applied is the test for reasonable apprehension of bias - whether a position held thirteen years earlier can affect one's judgment now, given that there is no evidence there was ever any involvement in the Zündel case, and that CSIS acted largely on its own in those years. (And given that the only evidence presented to link CSIS, the white supremacist movement and my tenure as Solicitor General is that the Ministerial Direction was not followed!).

4) Impartiality

[38]            Lastly, I believe that it is important to deal with the presumption of impartiality. As Chief Justice McLachlin states in Weywakum, supra, the judiciary is presumed to be impartial, and this presumption cannot lightly be set aside. There has to be a very good reason to rebut this presumption.

[39]            Mr. Zündel states in his affidavit that he began to suspect that I had closer links to CSIS than impartiality would require when I questioned the veracity of a document he had filed to show the truth of his allegation that CSIS was responsible for, or at least aware of, a bomb that had been sent to his house through the mail. With respect, and the transcript would confirm this interpretation, I was trying to determine whether or not he agreed with the evidence that he himself had filed. On the one hand, the book at issue, Covert Entry, by Andrew Mitrovica, spoke of the bomb; on the other hand, it also stated that a list had been delivered to Mr. Zündel, which he denied receiving. My comment was no more than suggesting that if the book was a work of fiction, then the seeming contradiction could be resolved. The Act allows me to accept a great deal of evidence that would otherwise be ruled inadmissible. For this reason, I must exercise extra caution in weighing it. Mr. Zündel expects no less when it comes to the evidence of the Crown; the same rules apply to all. That being said, I do not believe that questioning evidence in any way reflects partiality to one party rather than the other.

[40]            I was Solicitor General of Canada for a year. I was a lawyer for many more years. In the same way that a judge may, after some time, hear cases where his former colleagues are counsel, I do not think that having been the Minister responsible for CSIS before Parliament disqualifies me forever from hearing a case where CSIS plays a part. If this were so, very few judges anywhere in Canada would be able to carry out their duties.

[41]            If I had been personally involved in deciding matters related to Mr. Zündel, I would have of course recused myself. I have no such recollection, and there is no evidence to that effect. I am not an interested party in this matter, and I have no reason to favour the Crown over the respondent, no more here than in any other matter.

[42]            Another judge of this Court, Justice Dubé, faced a similar issue in Fogal v. Canada [1999] F.C.J. No. 129, where he was asked to recuse himself since the suit was against the government of Canada and he had been a Cabinet Minister and a Member of Parliament for the party still in power.

[43]            Justice Dubé refused to recuse himself, because there was no basis for the allegation of reasonable apprehension of bias. I think it worthwhile to reproduce his very eloquent words (at paragraph 10):

Judges do not descend from heaven. They come from various fields of activities. Some of us are former academics, others were in the public service, others practised law in small towns or large firms. And some of us were in politics. The variety of our individual careers is a rich source of knowledge and experience for the courts. Once we took our oath of office, we divorced ourselves from our past and dedicated ourselves to our new vocation. Our duty is to render justice without fear or favours.

[44]            Thirteen years have passed since I was Solicitor General. My link today to CSIS is the same as for any other judge of the Federal Court. The arguments that Mr. Zündel presents in favour of my recusal are linked to actions by CSIS that occurred after my mandate as Solicitor General. I never thought of recusing myself because, frankly, I do not recall being privy to any special information about Mr. Zündel during the time I was Solicitor General. I have no special loyalty to CSIS. My first and only loyalty is embodied in the oath of office I swore upon becoming judge of the Federal Court.

[45]            The test for the reasonable apprehension of bias is whether a well-informed person would consider that there is a possibility of bias. I do not believe, given the facts and on the strength of the relevant case law, that a well-informed person would think that I would be biased.

[46]            It is unfortunate that so much energy had to be expended on this matter, while Mr. Zündel still awaits a decision on his continued detention.

                                                                            ORDER

THIS COURT ORDERS THAT:

For the reasons given above, the motion is dismissed.

                    "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:                                                December 17, 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.

Peter Lindsay & Chi-Kun Shi

Barristers and Solicitors

Toronto, Ontario