Thursday, October 20, 2005
The charges stem from the notorious cases of torture practiced by U.S. forces in Iraq, Afghanistan and Guantánamo Bay, Cuba. They were laid on the occasion of George W. Bush’s controversial visit to Canada in November 2004. The charges were laid under sections of the Canadian Criminal Code enacted pursuant to the United Nations Torture Convention which requires extra-territorial jurisdiction to be exercised against officials, even Heads of State, who authorize or are otherwise responsible for torture.
On Monday, the Supreme Court of BC quashed an order banning publication of everything having to do with the charges imposed when they were first laid. In a secret hearing, held December 6th 2004 in B.C. Provincial Court, the charges against Bush were rejected on the basis of arguments by the Attorney General of British Columbia that the visiting president was shielded from prosecution by diplomatic immunity. A ban on publication of anything to do with the proceedings was also imposed.
The secrecy, the immunity claim and the ban are vigorously opposed by LAW, who appealed all aspects of the decision.
On Monday, Justice Satanove of the Supreme Court of British Columbia quashed the ban on publication after government lawyers failed to come up with any argument to defend it. The British Columbia Civil Liberties Association had intervened on the side of LAW against the ban.
“This is a very important victory”, said Gail Davidson, who laid the charges and, along with Howard Rubin, argued the case for LAW, “because it ensures that the proceedings will be scrutinized by people in Canada and throughout the world, to make sure that the law is applied fairly and properly and, above all, to make sure that Bush doesn’t get away with torture.”
“The American legal system seems incapable of bringing him to justice and there are no international courts with jurisdiction. So it’s up to Canada to enforce the law that everybody has signed on to but nobody else seems willing to apply.”
The next hearing in the case will take place on November 25th 2005, at 10:00 a.m. at the B.C. Supreme Court, 800 Smithe Street, Vancouver, B.C., when government lawyers have said they will argue that the case is no longer “moot” because the Attorney General of Canada has not yet consented to the prosecution. Toronto law professor Michael Mandel, co-chair of LAW, calls this argument “bogus”: “He’s still guilty of torture, he’s still on the loose and we still have our obligations under the UN Convention to bring torturers to justice.”
Michael Mandel, Tel: +1 416 736-5039: Fax: +1 416-736-5736; MMandel@osgoode.yorku.ca
Gail Davidson, Tel: +1 604 738 0338; Fax: 604 736 1175; email@example.com
Bush publication ban lifted
By matthew burrows
Publish Date: 20-Oct-2005
A Vancouver lawyer has won a procedural victory in her attempt to prosecute U.S. President George W. Bush under the Criminal Code.
Gail Davidson, cofounder of an international group of jurists called Lawyers Against the War, expressed her delight on October 18 following the lifting of a publication ban on court proceedings against the U.S. president.
“It’s great news, but really they had no choice,” Davidson told the Georgia Straight.
The Kitsilano lawyer got the ball rolling against Bush as soon as he set foot on Canadian soil for his November 30, 2004, visit. As a private citizen, she charged him with seven counts of counselling, aiding, and abetting torture at Abu Ghraib prison in Iraq and at Cuba’s Guantanamo Bay naval base. She had her charges accepted by a justice of the peace in Vancouver Provincial Court.
Bush faces prison time if the case goes to trial and he is found guilty.
On December 6, 2004, Davidson was at Provincial Court to fix a date for the process hearing. However, Provincial Court Judge William Kitchen promptly ordered a Straight reporter and other observers from the courtroom and cancelled the charges, declaring them a “nullity”. The meeting was deemed to be “in-camera” and Kitchen concluded immediately that Bush had diplomatic immunity during his two-day visit to Canada because he was a head of state.
Davidson subsequently appealed Kitchen’s decision and B.C. Supreme Court Justice Deborah Satanove directed the Crown to produce submissions on the publication bans by October 14. The Crown consented to the termination of Judge Kitchen’s Provincial Court ban and an interim ban made by B.C. Supreme Court Justice Patrick Dohm.
“We are next in [B.C. Supreme] court at 10 a.m. on November 25 for the Crown to argue that the case is moot and that the court not hear any argument on the substantive issue as to whether George Bush is protected from prosecution under the laws of Canada by what Judge Kitchen called a ‘concept of diplomatic immunity,’?” Davidson wrote in an October 18 e-mail to the Straight.
In an earlier interview with the Straight, Davidson said “nullity” means the charges never legally existed, even though they were approved by a justice of the peace on November 30, 2004. Crown counsel spokesperson Stan Lowe told the Straight that the upcoming November 25 court proceedings—he erroneously referred to the case as “Regina versus Bush”—will focus on two issues.
“First of all, the court has to determine whether it has jurisdiction in the Supreme Court to hear the matter,” Lowe said. “It’s a review, an application by Gail Davidson arising out of a Provincial Court decision. Secondly, part of the issue is whether they [LAW] can proceed in their application without the permission of the Attorney General of Canada.”
Canadian Attorney General Irwin Cotler must give his consent within eight days of laying charges for the case to continue. The Crown is now raising a preliminary objection that B.C. Supreme Court does not have jurisdiction to adjudicate on Davidson’s appeal because the issues raised are no longer moot. “It’s great,” Davidson said. “Now the Crown’s argument is moving from mute to moot.”
As a result of the lifting of the publication ban, the Straight has obtained a copy of the Provincial Court transcript from December 6, 2004. It sheds new light on some of the finer details of why Davidson and LAW laid the charges.
“It’s not a frivolously filed application,” Davidson said last year in court. “The application was filed on the 30th [of November] because Mr. Bush was in Canada, thereby giving Canada the jurisdiction to prosecute under 269(1) [of the Criminal Code of Canada], the torture section.”
Deputy regional Crown counsel Marion Paruk stated the Bush couldn’t be charged because he is a head of state: “This immunity flows from both the common law, international common law, Canadian common law, as well as by Canadian statute.”
In her response—outlining why immunity does not apply to Bush—Davidson was hurried up by Kitchen.
“I can give you a few minutes, not too many. It seems to be a slam dunk to me…I’m not going to get into a long argument about it. It seems to be trite criminal law…”
Davidson pointed out that Canada signed the 1987 Convention Against Torture. As a result, she said, “amendments to the Criminal Code were made to allow Canada to expand its jurisdiction to prosecute crimes of torture.”
Addressing directly the Crown’s question of immunity, Davidson referred to the Rome Statute, defining torture as a war crime and barring immunity for torture and other war crimes.
“Well, I’m afraid I don’t agree with you,” Kitchen said.
Prosecuting Bush in Canada for Torture
By JUSTINE DAVIDSON
On Monday, October 17th Gail Davidson and Howard Rubin along with Jason Gratl and Micheal Vonn representing B.C. Civil Liberties stepped into courtroom 55 of the BC Supreme Court in Vancouver with the hopes of lifting the publication ban which, since December of 2004 August, has kept the case out of the public eye. After a relatively short session of 45 minutes they emerged successful. "I don't know that I would call it a victory quite yet," said Ms. Davidson, "but it is at least a step in the right direction. People deserve to know what is happening here."
What is happening is that Ms. Davidson and Lawyers Against the War have laid charges against George Bush Jr; accusing him of aiding, abetting, and counseling the commission of torture. This charge is based on the abuses of the prisoners held at the U.S. prisons in Guantánamo Bay, Cuba and Abu-Ghraib, Iraq including Canadian minor Omar Khadr, who has been held in Cuba since 2001.
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