Cases

Zundel (Re)

June 23, 2004 (2004 FC 798)

Journalist Andrew Mitrovica was subpoenaed to appear as a witness in Holocaust-denier Ernst Zundel's hearing before the Federal Court. The hearing was being held pursuant to section 80 of the Immigration and Refugee Protection Act on the reasonableness of a security certificate issued by the Ministers against Zundel.

Mitrovica is the author of the book "Covert Entry" - an exposé on failings within CSIS, based mainly on the revelations of former CSIS agent, John Farrell. The book devotes a few pages to Zundel, and describes in particular the fact that CSIS might have been aware that a bomb was being mailed to Zundel and did nothing to stop it. In light of this, Zundel served Mitrovica with an extremely broad subpoena requiring Mitrovica to bring with him all documents, notes and other materials relating to Zundel, Farrell, CSIS or the book.

In quashing the subpoena, Justice Blais accepted Mitrovica's arguments about the importance of protecting confidential sources and cited the recent R. v. National Post [2004] O.J. No. 178. Justice Blais reviewed the test for compelling a journalist to testify, as set out in R v. Hughes [1998] B.C.J. No. 1694, and found that Mitrovica could not be compelled to testify since he would not have anything to add, other than hearsay, that was not already in his book.

The key passages in this victory for journalists' rights are as follows:

[29] . . . Mr. Mitrovica has already disclosed his main source of information for the book. For other sources, if any, Mr. Mitrovica could invoke his privilege as a journalist, and it seems to me he would be entitled to do so. The benefits of having Mr. Mitrovica testify seem rather doubtful, as against certain harm to the freedom of the press. Lord Denning, writing in Senior v. Holdsworth, [1975] 2 All ER 1009 (C.A.) stated the case for balancing the need to know with the need to not hamper the work of journalists …

[30] . . . I believe Mr. Mitrovica has little material evidence to contribute beyond what has already been published. Compelling him to produce his notes and materials is unduly intrusive, and given the little probative value that I could attach to such hearsay materials, I see no need to disturb the journalistic privilege that attaches to Mr. Mitrovica's evidence.

[31] . . . I believe compelling Mr. Mitrovica to testify is unnecessary. Mr. Mitrovica has no direct evidence of CSIS activities, only what has been reported to him, the main source being someone who obviously, to put it very mildly and judging from the content of the book, is at odds with CSIS. For this reason, I do not believe Mr. Mitrovica can provide the Court with relevant evidence.

[32] The last point of the test, whether impairment can be minimized by limiting the scope of the evidence to be provided, was emphasized in Mr. Mitrovica's motion as an intermediate solution. However, for reasons already stated, I fail to see what Mr. Mitrovica can contribute to these proceedings beyond what is already part of the public domain through his book.

Justice Blais also quashed subpoenas served by Zundel on two leaders of the Jewish community and a judge who served as Zundel's lawyer in 1985.

See Zundel (Re)