A Turning Point after Inaction

Chief Justice Beverley McLachlin spoke to the Canadian Bar Association (CBA) in Calgary yesterday addressing the Maclean’s article controversy and the importance of pro bono work in Canada.

But the 30 second ovation came for another speaker, Lieutenant-Commander William Kuebler, who criticized Canada for its inaction in dealing with the case of Omar Khadr, a Canadian detainee at Guantanamo Bay.

The last time Kuebler saw Khadr, the latter had requested crayons and paper. Kuebler claims this is indicative of the mental state the detainee was in, and grounds for some of the harshest condemnation of his treatment.

Kuebler is a U.S. military lawyer assigned to Khadr’s defence. Canadian defense for Khadr, Dennis Edney, also claims Khadr requires medical treatment and is going blind.

Legal critics of the US administration assert:

• Khadr’s status under Article 102 of the 3rd Geneva Convention is that of a Prisoner of War (POW)
• US administration is required to release Khadr for medical treatment under the Geneva Convention Relative to the Protection of Prisoners of War, and the U.S. Army Field Manual
• Khadr has been deprived his rights to liberty, due process, freedom from torture, and freedom from arbitrary imprisonment
• The case against him relies on ex post facto offenses, or those actions not a crime at the time they were committed, contrary to the Convention on the Rights of the Child, article 40(2)(a), the Third Geneva Convention, Article 99.
• Denying Khadr a fair trial is in violation of the Rome Statute of the International Criminal Court Article 8(2)(iv), and Crimes against Humanity and War Crimes Act

Laywers for Khadr indicated that today could be a turning point in what has been relative inaction by Canadians.

Causes for Inaction

“What needs to be done now is to take stock of where we are,” said Kuebler. ” I think Canadians have given the U.S. the benefit of the doubt – the government has, and the Canadian Bar Association – but the time has come to say that enough is enough.”

Edney also related his experiences of being bullied and intimidated by the US military during his trips to Guantanamo,

I felt very vulnerable, and I continue to. I have real concerns. I want to be protected.

Law firms seeking to do pro bono work for detainees were threatened with sanctions. In addition to these strong-arm tactics, many Canadian politicians and lawyers have until now been reluctant to advocate for these types of suspects due to their controversial profile.

But the CBA insisted it had the ability and integrity to to take on these tough cases, and lobby for justice to the federal government.

Not Shying Away from Controversy

CBA president Parker MacCarthy quickly agreed that, “I think it’s time for all Canadians to be speaking out to end this horrendous lack of due process.”

MacCarthy also explained about the important role the CBA could play,

I don’t want the leave the impression that the CBA will be sitting on its hands for the next six months. I don’t think the Canadian Bar Association has ever shied away from controversy. We are not a shy, retiring organization. The CBA has a huge amount of credibility nationally and internationally.

Canadian lawyer Lorne Waldman also commented,

The Khadr case is a difficult one. But the Khadr case isn’t about an individual, it’s about more than that. It’s about a system that is fundamentally unfair.

But there are other cases within our own system that might be just as unfair as Khadr’s, requiring greater scrutiny and calls for more rigorous standards of justice.

Subversion of the Judicial Process

Waldman is no stranger to controversial cases as co-counsel for Mahar Arar, and partner at Waldman & Associates, a firm specializing in immigration law.

Paul Cavalluzzo, counsel for the Justice Dennis O’Connor‘s inquiry into the Arar case, recently revealed that the RCMP failed to provide full disclosure. Greater scrutiny and failures of intelligence were also placed on the role of CSIS in the case.

“What this really amounts to is a subversion of the judicial process,” said Waldman. “Judges now who receive `ex parte’ applications, especially when they deal with national security-type cases, are going to have to wonder whether they are getting the full story.”

And the Arar case does shed light on similar cases of deportation and torture of other Canadians.

Also, a few weeks ago the terrorism charges against 18 youth arrested in Toronto June 2, 2006, were stayed in court. One of the 18 year olds commented,

…what counts is (the Crown) realized their mistake. They arrested too many people at the same time.

Isabel Teotonio of the Toronto Star explained,

At stake is the reputation of Canada’s spy service and federal police force, particularly since news of the alleged home-grown terrorism cell garnered international headlines when 14 adults and four youths were charged.

This followed previous detainment of 23 unrelated individuals in Toronto in 2003 in a swoop called Project Threadbare. The charges against all were dropped, but they were quietly deported out of Canada with no public declaration of their obvious innocence over allegations of terrorism.

All relate how their lives since have been ruined, and the deportation proceedings themselves have come under scrutiny by some for subverting due process.

Justice is a “basic right”

Although McLachlin correctly asserted yesterday that “The price of justice should not be so dear,” and declared that access to justice is “a basic right,” there are some among us that in practice have far less rights than others.

The legal system is too complicated and expensive for the majority of Canadians, and according to McLachlin, requires most of the middle class to take second mortgage or lose their life savings.

The RCMP itself has allegations of internal racism pending before the Human Rights Tribuna. The internal attrition rate of 6% is much higher for minorities at 17%, and there have been repeated calls of intolerance among the ranks.

When adding the complexities of discrimination, hatred, and xenophobia, even at the hands of law enforcement, military, and intelligence agencies, the quest for justice looks even more dismal.

Update

Read the Apr. 6, 2006 letter by the CBA to Stephen Harper and Peter MacKay here.

The more recent letter this Apr. 12, 2007 is available here.

Recent coverage confirms the position that there are parallels between the Khadr case and others:

Waldman told reporters on Saturday there are some parallels between the Khadr and Arar cases.

“I can’t tell you how disappointed I personally am, as a Canadian, in our government’s complete abdication of responsibility to a Canadian child who’s being detained in horrible conditions and being denied due process,” he said.