Don't be taken in by Zundel's tactics

David Matas
National Post

Thursday, March 13, 2003

Canada has had enough experience with Ernst Zundel not to take him at his
word. Yet, the current reporting and commentary on Zundel does just that.

The result is a fantasy debate, disconnected from reality.

A Canadian jury convicted Zundel of publishing false news, knowing the
news to be false. That conviction was overturned by the Supreme Court of
Canada in 1992 on the grounds that the false news provision of the
Criminal Code was unconstitutional. However, that does not change the fact
a jury found that he had told an untruth, knowing it to be untrue.

The false news Zundel was convicted of spreading was Holocaust denial. He
could have defended himself by pleading that he did not know the news to
be false -- that he thought he was telling the truth. Instead, he used the
courtroom for propaganda purposes; he chose to defend himself by
attempting to convince the jury that the Holocaust did not happen. In
other words he abandoned a stronger legal position in favour of a weaker
one in order to garner publicity for himself and his cause.

Given this history, one has to view any legal stance Zundel takes with
suspicion. Unfortunately, this lesson seems to have been lost.

Zundel is now attempting to make a refugee claim against Germany, his
country of nationality. The issue, as he has framed it, is whether he
should be allowed to make that refugee claim, or be found a security risk
and denied eligibility to the refugee claims process. Forgotten are two
important facts, facts that Zundel himself makes no point in parading. One
is that he was already determined to be a security risk, in August, 1995.

The second is that he is arguably a permanent resident.

Before July, 2002, the old Immigration Act provided that a permanent
resident outside of Canada more than six months was deemed to have lost
his or her status. The new Immigration and Refugee Protection Act provides
that a permanent resident loses his or her status only if that person is
outside of Canada three years out of the last five. A transition provision

carries forward the new law to old cases. When Zundel returned to Canada
he had been outside of Canada more than six months prior to July, 2002,
but he had not been outside of Canada more than three years out of the
last five. It is arguable, therefore, that under the new law, he remains a
permanent resident.

It is unlikely that Zundel would succeed in a claim that he has a
well-founded fear of being persecuted by Germany. Moreover, notice by an
immigration officer to the Immigration and Refugee Board of security
proceedings suspends Zundel's refugee claim, and if he is found in
immigration proceedings to be a security threat, then he would be
ineligible to pursue his refugee claim.

Given that this is so, and given that a permanent resident has a higher
legal status in Canada than a refugee anyway, why would Zundel, who has a
plausible claim to permanent resident status, abandon that claim and
instead pursue a far-fetched claim to refugee status against Germany?

The answer is that, as was the case in the false news prosecution, Zundel
would rather, for propaganda purposes, abandon a stronger legal position
in favour of a hopeless one.

And what about his security status?

When Zundel applied for Canadian citizenship in 1993 the minister of
Citizenship and Immigration recommended that the application be denied
because there were reasonable grounds to believe that he would engage in
activity that constitutes a threat to the security of Canada. The matter
went to the Security Intelligence Review Committee (SIRC) for
determination whether that recommendation of the minister should go
forward to Cabinet.

Zundel challenged the jurisdiction of SIRC in two separate streams of
litigation, both of which he lost. The second challenge was finally
exhausted at the Supreme Court of Canada in December, 2000. It was then
that Zundel left Canada to go the United States.

It would seem a foregone conclusion that, since the minister had already,
for citizenship purposes, found Zundel to be a security risk in 1995, he
would now find Zundel to be a security risk for immigration purposes. Yet,
if we read today's papers, it's as if that prior determination had never
been made.

We must abandon considering the question that Zundel has put to us --
whether he should be allowed to claim refugee status -- and instead
consider the question that Zundel really poses to Canada -- how do we get
rid of him?

The answer to that question seems pretty straightforward: the continuation
into the immigration stream of the security finding already made for
citizenship purposes. Even a permanent resident found to be a security
risk becomes removable. Right now, if he is indeed a permanent resident,
this appears to be the only available ground for his removal.

Ultimately, this whole affair could easily have been avoided if the
Minister of Citizenship and Immigration had just made a simple phone call.

The United States was entitled to return Zundel to Canada, but was not
obliged to do so. The United States had the power to return Zundel to
Germany. I have little doubt that the United States would have done so, if

Canada had only asked. Why the Minister did not pick up the phone to call
his U.S. counterpart to ask, as B'nai Brith had suggested he do, is the
true mystery in the Zundel case.

David Matas is senior counsel for B'nai Brith Canada. He is the author of

Bloody Words: Hate and Free Speech, published by Bain & Cox in 2000.
A9 Copyright  2003 National Post

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