The Supreme Court of Canada has refused Holocaust denier Ernst Zundel a chance to challenge the constitutionality of secret trial legislation that was passed after the September 11, 2001 terrorist attacks.

The court announced Thursday morning that it would not hear an appeal of an Ontario Court of Appeal decision that refused the appeal on procedural grounds.

Mr. Zundel, 65, has been held in solitary confinement in Toronto for the past 18 months. Closing arguments are currently being heard before Federal Court Judge Pierre Blais as to whether Mr. Zundel should be deported to Germany as a threat to national security.

”When you allow procedures that are too loose and don't contain enough guidance, all sorts of unfairness can happen,” defence lawyer Chi-Kun Shi said in an interview Thursday morning. ”It is unfortunate that the Supreme Court will not hear our constitutional challenge of the legislation.”

In a brief that Ms. Shi and co-counsel Peter Lindsay supplied to the Supreme Court in support of their request, they argued that it is ”the true measure of our system of justice is how it treats the marginalized and the unpopular, such as the applicant.

"Hard cases make bad law. There is no harder case than the applicant and no harder challenge for this honourable court than to reject the popular option of making bad law under it.”

Mr. Zundel lived in Canada from 1958 to 2000, building a publishing empire that supplied material to dozens of countries denying the extent of the Holocaust. He has no criminal record.

Mr. Lindsay and Ms. Shi challenged the fundamental fairness and constitutionality of the secret-trial legislation by way of a habeas corpus application in the Superior Court of Ontario and the Ontario Court of Appeal. Both courts, however, said they could not conduct the review for procedural reasons.

”It is respectfully submitted that, in placing procedural concerns over constitutional rights, both courts erred in law,” they said in their brief to the Supreme Court. ”Is it appropriate for courts to allow litigants to procedurally sandbag the other party and bounce him from court to court in a jurisdictional ping-pong game?”

They said that the secret trial procedures allow a judge to receive any evidence he think is ‘appropriate,' even if it would normally be inadmissible.

”In accordance with it, Mr. Justice Blais has admitted articles, hearsay, double hearsay, triple hearsay,” they said. ”As a result, the applicant faces over 1,800 pages of hearsay 'evidence' against him which is not sworn and not subject to challenge through cross-examination."

Anyone named in a security certificate under the secret-trials legislation is subject to detention without charge and a "Star Chamber" hearing for which there can be no appeal, they said.

”The impact of these consequences on not only the Applicant, but more importantly on the integrity of our rule of law in Canada make it imperative that this Honourable Court reviews the constitutionality of the Secret Trial Legislation without any further delay,” the lawyers said.