Zündel, Re, 2004 FC 3

Date: 20040105

Docket: DES-2-03

Citation: 2004 FC 3

Ottawa, Ontario, January 5, 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]                 A subpoena had issued on December 9, 2003, requiring the attendance of Mr. Dave Stewart, an agent of the Canadian Service Intelligence Service ["CSIS"], at the December 11, 2003 hearing in Court file No. DES-2-03, dealing with the security certificate concerning Ernst Zündel.

[2]                 Counsel representing CSIS stated before the Court, in December, that the subpoena had been improperly served. There followed an exchange of letters, counsel for Mr. Zündel requesting to be informed as to the proper manner of serving the subpoena, counsel for CSIS answering that the Federal Court Rules [the "Rules"] were sufficiently clear and specific on this point.

[3]                 In a letter dated December 16, 2003, counsel for CSIS stated:

...service would be readily accepted if it had been done in accordance with the Federal Court Rules. I again re-state this point; that we are fully prepared to accept service should the service occur in proper fashion.

[4]                 Counsel for CSIS declined however to define what this meant. In a letter dated December 17, 2003, he further asserted:

The Federal Court Rules are specific and clear with respect to effective and proper service of a subpoena.

[5]                 As far as I can tell, the Rules are not that transparent when it comes to serving a subpoena to a CSIS agent whose home and work addresses are unknown. The Rules do not specify that service of a subpoena must be personal; however, in the absence of a specific rule, the Rules themselves refer us (Rule 4) to the Rules of Civil Procedure in the province where the action is proceeding.

[6]                 The Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provide as follows:

53.04 (1) A party who requires the attendance of a person in Ontario as a witness at a trial may serve the person with a summons to witness (Form 53A) requiring him or her to attend the trial at the time and place stated in the summons, and the summons may also require the person to produce at the trial the documents or other things in his or her possession, control or power relating to the matters in question in the action that are specified in the summons.

(...)

(4) A summons to witness shall be served on the witness personally and not by an alternative to personal service and, at the same time, attendance money calculated in accordance with Tariff A shall be paid or tendered to the witness.

[7]                 It would seem therefore that the subpoena must be served personally.

[8]                 However, under rule 136(1) of the Rules also provides:

[9]                 In this case, it would appear that personal service of the subpoena "cannot practicably be effected"; the Court thus can intervene to order substitutional service.

[10]            The intervention of this Court may also be warranted to compel the attendance of a witness, which requires leave of the Court. (Rule 41(4)c)).

[11]            For these reasons, the motion is properly brought before this Court. Both applicable rules, 41 and 136, provide that the motion may be brought ex parte.

[12]            However, in this case, granting the motion ex parte appears ill-advised. Given the nature of the proceeding and the complication surrounding calling this witness to the hearing, it may well be that the Ministers have valid representations to make on this issue. In the letter addressed to Mr. Zündel's counsel by counsel for CSIS on December 16, 2003, it is indicated that should a motion be presented, the Ministers would wish to be notified so as to be "properly represented". Before deciding the issuance of a subpoena, I believe it is preferable to hear both sides on the matter.

                                                               ORDER

UPON motion made on behalf of Ernst Zündel, ex parte, by motion in writing, for order to subpoena Mr. Dave Stewart, such subpoena to be effectively served on CSIS headquarters;

UPON reading the motion record of Ernst Zündel as filed;

UPON noting that this Court does not believe that it is in the interest of justice that this motion should be granted ex parte;

THIS COURT ORDERS THAT:

-          The motion record as filed with this Court be served on the respondent Ministers, the Minister of Citizenship and Immigration and the Solicitor General of Canada;

-          Furthermore, that this motion be heard orally on January 22, 2004, in Toronto, Canada, upon resuming the hearing on the Security Certificate.

                 "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 6, 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