RSS FeedFraud and Fearmongering in the “War on Terror”
Prof. Michael Keefer, Professor of English at the University of Guelph, has a new article on the Toronto 18, where he says,
The theatrical arrests of 18 (mostly young) Muslims in Toronto in the Summer of 2006 reinforced media-driven paranoia that homegrown terrorists were everywhere. The unraveling of the case two years later exposes to view yet again the sinister and disgraceful behavior of Canada’s security intelligence apparatus, which has formed a habit of confecting false accusations of terrorism against Canadian citizens. ‘The threat to Canadian society is not a bunch of Muslim boys playing paintball, it’s an ideologically driven government willing to curtail our civil liberties.’
He provides strong criticisms towards the media for their coverage of the case.
Cheop’s Law
Cheop’s Law:
Nothing ever gets built on schedule or within budget.
Could George W. Bush Be Charged With War Crimes?
George W. Bush and Bill Clinton are coming to Canada on March 29 to speak to an estimated crowd of up to 5,000 people.
David Knowles of the Politics Daily describes the showdown,
The event will consist of the two men seated in chairs between a moderator who has not yet been chosen.
No matter how civil the discourse, the thought of Mr. Bush and Mr. Clinton on stage is bemusing, given the animosity of the past 16 years, and the efforts under way to overcome it…
One thing to keep an eye on is whether the two men will allow questions on torture. Given the legal consequences for former Bush administration figures, this could be one potato too hot for handling. Otherwise, I suspect we’ll hear a cordial conversation with plenty of respectful disagreement..
Former Vice-President Dick Cheney has continued to defend controversial interrogation techniques that many concede as torture.
But the issue of torture is not just theoretical posturing. Canada is a signatory to the International Criminal Court, which is charged with convicting three crimes: genocide, crimes against humanity, and war crimes.
When the release of further photos of Abu Ghraib abuses, including torture and rape, were reported blocked yesterday, Iraqis did call for investigations and charges of crimes against humanity.
Crimes against humanity require widespread or systematic abuses.
The ICC Prosecutor determined there was a reasonable basis that grave breaches had been committed by British troops during the 2003 Iraq invasion for willful killing (8 (2)(a)(i)), and torture or inhumane treatment (8)(2)(a)(ii). But he did not proceed with it because at that time there evidence only demonstrated only 4-12 individuals were subjected to willful killing, and,
[only a] limited number of victims of inhuman treatment totalling in all less than twenty persons.
War crimes, on the other hand, can be covered by even an isolated act by an individual soldier, even without direction or guidance from superiors, which is why Article 8 of the Rome Statute begins with what Hermann von Hebel and Daryl Robinson call a non-threshold threshold in The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, and Results,
1. The Court shall have jurisdiction in respect of war crimes in particular [but not limited to] when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
The United States is not a signatory, and it was Bush himself who instead of ratifying the ICC actually had America’s signature removed. His rationale was “politicized prosecutions and investigations” could result in Americans being brought before the ICC.
Bush’s fears may not have been completely vain, because the ICC does define war crimes to include acts such as torture and inhumane treatment. Other Geneva Conventions that could allegedly be breached include deprivation of a fair trial, willful killing, and wanton destruction of property.
As a signatory to the ICC, Canada could theoretically be asked to bring Bush before it. But that would never happen, given a 2002 Act passed under Bush that allowed the U.S. military to storm the Hague by force and recover any Americans being tried there.
Robert Marquand of the CSM describes the implications of the Act,
Formally titled the American Service Members Protection Act, the measure is widely and derisively known here as the Invasion of The Hague Act.
Odd as it may seem, the law allows the US to constitutionally send jack-booted commandos to fly over fields of innocent tulips, swoop into the land of wooden shoes, tread past threatening windmills and sleepy milk cows into the Dutch capital – into a city synonymous with international law – and pry loose any US troops.
Today, the Dutch mostly treat the issue as a joke, a cowboy American moment. But it is widely felt that if President Barack Obama’s foreign policy team wants to achieve a symbolic break with the previous White House, it could rescind the invasion law.
As a Dutch Ministry of Justice official put it, “I wouldn’t overstate how seriously we take this any more, but it does seem a bizarre symbol.”
The implications for Canada are a little more vague,
One controversial offshoot of the invasion law is called “bilateral immunity” – a policy requiring all states except Israel, Egypt, Taiwan, and those in NATO to sign a waiver stating that they will contravene the ICC if any Americans are arrested. Countries that don’t sign the waiver forfeit US military assistance. The policy pressured small states to comply – whether or not they felt it proper.
Indira A.R. Lakshmanan explains the reason behind this move,
There is a tension in U.S. foreign policy that’s pretty longstanding: The U.S. is far more comfortable as the maker of international rules than as subject to them.
That didn’t stop the Toronto Coalition Against the War from investigating whether Bush could be charged by the ICC. In addition to a planned protest outside the event, the group held an info session last week with Prof. Michael Mandel of Osgoode Hall. Mandel described some of the other challenges of accomplishing such a conviction and the low likelihood of how something like this could happen.
Prof. Mandel mentions the “Crime Against Peace,” or a war of aggression, one which is not fully included under the ICC yet due to lack of consensus by the signatories, but called the “supreme international crime” according to the Nuremberg Tribunal.
However, Attorney General Goldsmith warned Prime Minister Blair in 2003 that the invasion of Iraq could lead to possible prosecution for the crime of aggression because it was recognized by customary international law and therefore imported into the domestic law, a notion later affirmed by the House of Lords in R v. Jones [2006] UKHL 16.
There is another significant barrier to the prosecution of Americans or other allies in Iraq for crimes of aggression that Mandel did not cover. Article 5 of the Rome Statute lists the ratione materiae, or subject matter jurisdiction of the court,
2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.
[emphasis added]
Article 39 of the Charter of the United Nations states,
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.
If acts of aggression can only be defined by the Security Council, then Lionel Yee points out that no permanent member of the Security Council could ever be prosecuted for the crime of aggression.
However, the International Court of Justice may have indicated otherwise. In Nicaragua v. United States (1986), the dissenting opinion of Judge Schwebel stated that a Security Council determination of aggression is based on political considerations, and not a legal judgment,
60. Moreover, while the Security Council is invested by the Charter with the authority to determine the existence of an act of aggression, it does not act as a court in making such a determination. It may arrive at a determination of aggression – or, as more often is the case, fail to arrive at a determination of aggression – for political rather than legal reasons.
However compelling the facts which could give rise to a determination of aggression, the Security Council acts within its rights when it decides that to make such a determination will set back the cause of peace rather than advance it. In short, the Security Council is a political organ which acts for political reasons. It may take legal considerations into account but, unlike a court, it is not bound to apply them.
[emphasis added]
The Separate Opinion of Judge Simma in Democratic Republic of the Congo v. Uganda (2005) went further, indicating that Security Council approval was not even necessary for the determination of aggression,
3. It is true that the United Nations Security Council… has never gone as far as expressly qualifying the Ugandan invasion as an act of aggression…
The Council will have had its own ⎯ political ⎯ reasons for refraining from such a determination.
But the Court, as the principal judicial organ of the United Nations, does not have to follow that course. Its very raison d’être is to arrive at decisions based on law and nothing but the law, keeping the political context of the cases before it in mind, of course, but not desisting from stating what is manifest out of regard for such non-legal considerations. This is the division of labour between the Court and the political organs of the United Nations envisaged by the Charter!
[emphasis added]
The ICC is not a body of the UN, but theoretically may work with the ICJ to determine a case of aggression independently of the Security Council. Article 39 determinations may also theoretically be challenged as ultra vires.
The Yugoslav Tribunal Appeals Chamber stated in the Tadic case,
It is clear from this text that the Security Council plays a pivotal role and exercises a very wide discretion under this Article. But this does not mean that its powers are unlimited. The Security Council is an organ of an international organization, established by a treaty which serves as a constitutional framework for that organization. The Security Council is thus subjected to certain constitutional limitations, however broad its powers under the constitution may be. Those powers cannot, in any case, go beyond the limits of the jurisdiction of the Organization at large, not to mention other specific limitations or those which may derive from the internal division of power within the Organization. In any case, neither the text nor the spirit of the Charter conceives of the Security Council as legibus solutus (unbound by law).
In particular, Article 24, after declaring, in paragraph 1, that the Members of the United Nations “confer on the Security Council primary responsibility for the maintenance of international peace and security“, imposes on it, in paragraph 3, the obligation to report annually (or more frequently) to the General Assembly, and provides, more importantly, in paragraph 2, that:
- “In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII.” (Id., Art. 24(2).)
The Charter thus speaks the language of specific powers, not of absolute fiat.
[emphasis added]
Despite the willingness of many people around the world to have some strong international statement made that these types of military acts in Iraq are inappropriate, these political organs will prevent any determination of war crimes or crimes of aggression.
It’s unlikely that the ICC or other international mechanism will be used in this manner any time in the near future – a conclusion Mandel would likely agree with.
Videos of Prof. Mandel’s talk included below for interest sake below:
Justice Simon Noel Slams CSIS For Being Unreliable
The reason why we have an intelligence agency is that they are supposed to be reliable and trustworthy, doing the work that is necessary in order to protect us.
On Wednesday, Justice Simon Noel of the Federal Court of Canada indicated this might not be the case, calling it a “troubling situation.” Not only did CSIS not give information as directed by the court in a timely manner, but they may have withheld information as well,
This court will be reviewing all orders, issues and evidence provided to date in this proceeding to see if any further judicial action is required to preserve the integrity of the administration of justice. This review will require the recalling of several CSIS witnesses.
Norm Boxall, counsel for the defence, stated,
The integrity of the system is based on the integrity of the security service.
They’ve been given a huge amount of trust and it appears, based on this, they’ve breached the trust . . . . It appears that there’s been deliberate action not to supply the court with information.
Now Even Shoplifters are Terrorists
Being a terrorist is en vogue these days. And even if it isn’t, seems like you might have a hard time escaping the label.
Minister MacKay claimed pirates off the coast of East Africa were “financial terrorists,” apparently a new brand or flavour of the terrorist trend.
Even the National Post, usually a publication known more for perpetuating terrorist myths than clarifying them, was quick to criticize this move in an editorial,
Oh boy. Since Sept. 11, 2001, we have watched ruefully for the inevitable debasement of the verbal coin of “terror” and “terrorism”; and here we have what seems like a lamentably clear example. Mr. MacKay has something of a point, insofar as acts of piracy are now generally classed with terrorism under Canadian law and UN conventions.
But the term “terrorism” exists precisely to distinguish ordinary thefts and kidnappings, with ordinary motives, from ones intended to undermine the international order and the legitimacy of states. It functions as a license for governments to transcend the ordinary limits and procedures of law, where to observe them would mean surrender to the political program of a minority.
That’s actually the problem with the current law. Applying the terrorist label does not give governments a license to trample rights and transcend “ordinary limits,” although it seems that a recent decision might indicate that’s exactly what’s happening.
The first member of Canada’s only major alleged terrorist plot, the Toronto 18, was sentenced this week. But it appears as if he was guilty without any knowledge of anything remotely related to terrorism. The broad and vague language of the current terrorism provisions means he could be convicted for any form of material support – including shoplifting.
Thomas Walkon of the Toronto Star explains,
By any reasonable definition of the term, this young man is not a terrorist. He did not plot to blow up buildings or behead politicians. Nor, according to evidence at his trial, did he know of any such alleged plots… He did shoplift from Canadian Tire gear that the judge determined was intended, if not necessarily used, for the ill-fated camping trips…
So why was this juvenile, whose only overtly criminal behaviour consisted of shoplifting, convicted of terrorism?
The answer lies in the wording of anti-terror legislation, rushed through Parliament after 9/11.
Under these anti-terror provisions of the Criminal Code, a person need not know anything about a specific terrorist plot – or even if a such a plot is being planned – to be guilty of terrorism.
But he is guilty if he knowingly does something – even indirectly – that is intended to further the objects of a group that, in the most general sense, has terrorist intentions.
Such as shoplifting camping gear.
Indeed, a suspect can be found guilty of terrorism even if this shoplifted camping gear is never used.
This position is an embarrassment to the Canadian legal system. The hallmark of criminal law in the common law system is a mental element and an act element. Someone who commits a crime without intending to do the act cannot normally be convicted (with some exceptions).
Doing an act that is never intended for a terrorist act, then being punished for it when it is retroactively labeled as material support to a terrorism conspiracy, is a miscarriage of justice.
Justice Sproat who ruled in this case had no choice but to convict the young man in this case given the wording of the statute. The full blame of this rests on Canadian Parliament, who overreacted with xenophobia when passing this law in that it was worded so broadly that it could be abused in this manner.
Perhaps more specifically blame can be leveled at the Justice Minister at the time, Irwin Cotler, who was charged with reviewing Bill C-36 and ensuring an adequate balance was struck between civil liberties and national security concerns.
Prof. Don Stuart of the Faculty of Law at Queen’s University warned the Special Senate Committee on Bill C-36 at that time,
I see in this bill a wider pattern of quick-fix law and order legislation. This is the kind of legislation of which Canada should not be proud and should not accept…
When I look at this bill, it is something that Canada did not need. We had ample law… Those of us who have been thinking about criminal law teaching and principles for years would see absolutely no reason to create new crimes to deal with terrorism and the types of police powers and CSIS powers that have been created here. They are quite extraordinary. I do not think we need them at all. We have plenty of laws to deal with this situation…
Despite recent government amendments, I see that they do not yet meet the high standard of justification needed to support massive dragnet powers of this sort. Basic principles of a criminal justice system that deserves the name require a meaningful proof before you send someone to jail of a meaningful act and what we call fault. Also, we need to have people fairly labelled and punishment must be proportionate. Notwithstanding the amendments the government has approved – the tinkering around with the definitions – in my view, the definitions are still far too wide. I include in that a consideration of the listing section.
In my view, the devil of this bill is in the detail. I do not think there are too many people in this country who have read every provision of this bill… It is far too complicated. To suggest that we actually know or Parliament knew what they were voting on when they passed it seems to be a stretch.
If you actually look at the way these new offences have been defined, they do not achieve what they say they will. The Justice Minister stands up and says, “We have a narrow offence about knowingly participating in a terrorist group,” but when you look at the bill, the word “knowingly” is nonexistent.
[emphasis added]
Prof. Stuart elaborated further on the failings of the new Bill in a seminal paper,
The Anti-terrorism Bill (Bill C-36): An Unnecessary Law and Order Quick Fix that Permanently Stains the Canadian Criminal Justice System.
Even more to blame is a law enforcement establishment that cast a net so wide that even those peripherally involved with an alleged terrorist act can be held complicit, even if they knew nothing about it.
When Canadians re-gain their sensibility and re-examine the fairness and justice of these provisions, and the potential for abuse, it should be the first thing re-visited by Parliament.
Judges Concerned About Female Lawyers’ Attire
A panel of judges and lawyers has raised concerns about lax dress codes for women lawyers at a meeting of the 7th Circuit Bar Association in Indiannapolis.
The panel criticized some female lawyers for wearing sexy and revealing clothing in the courtroom. Such behaviour, they say, distracts everyone from the quality of the lawyers’ arguments.
One judge criticized a lawyer who appeared in court wearing a velour track suit that looked as if she was “on her way home from the gym.”
Salon.com also covered the highlights of the panel discussion:
Judge Michael P. McCuskey said he’s seen women in court wearing “skirts so short that there’s no way they can sit down, and blouses so short there’s no way the judges wouldn’t look.” Judge Benjamin Goldgar concurred by sharing his wish that he could tell certain female lawyers: “I’d really like to pay attention to your argument” (but your breasts are getting in the way).
According to Judge McCuskey, the problem starts in law school and ought to be dealt with there.
Obviously, this is less of a problem in Canada, where male and female lawyers alike are expected to wear gowns at most levels of court. However, at lower court levels and at most tribunals, lawyers are allowed to wear business casual clothing.
For men, business casual means a shirt, tie, and business suit. But what it means for women is still the subject of some interpretation. Does it include a blouse with three buttons undone? How long does a skirt have to be before it qualifies as business casual?
We’d love to hear your thoughts in the comments section.
Black Liquor Sparks New Trade Feud and Old Controversies
Is Canada listening to calls to assert our national interests?
On Thursday, Canada joined the EU, Brazil and Chile in demanding the withdrawal of tax credits in the U.S. for black liquor.
The credits are estimated at $4-8 billion, passed in 2007, and intended for energy alternatives in paper mills and cogeneration facilities. Paper manufacturers have started mixing F-T diesel with a kraft process byproduct known as black liquor to meet the definition of the tax credit, which Canada claims is hurting Canadian jobs.
Although President Obama wants to terminate the rebate on Oct. 1, Canada and the other countries are threatening action through the World Trade Organization (WTO).
In light of a global recession caused by what some consider fiscal mismanagement and overzealous deregulation in the U.S., Canada’s controversial and convoluted trade relationship with the U.S. warrants greater scrutiny.
Party on Mitch
Mitch, you’re totally right, we would love to share this with our readers:
How did I miss this one? More importantly, how did Law is Cool miss it?
Professor Paul Caron reports on the SubtleDig study(?) that ranked the top party law schools in the US. The blog also reviewed the schools with the most alcohol consumption,the happiest student bodies, the most dateable student bodies and most nights spent out, among others.
But we’re on an irregular schedule after exams, probably because most of us are partying as suggested. Thanks again for the heads up.
Podcast: Guatemala, Polygamy, and Free Legal Information
For Sunday 24 May 2009, this is the Law Is Cool Podcast. On today’s show, Omar Ha-Redeye’s feature interview with Nancy Kinney, creator of AdviceScene.com.
The Suspicious Case of Rodrigo Rosenberg Marzano
We begin in Guatemala with a story that combines a political intrigue, a slain lawyer, and Twitter. The story begins with Guatemalan lawyer Rodrigo Rosenberg Marzano, who was shot dead while bicycling on May 10th. The next day, a remarkable video (see below) was released to the Guatemalan press. The video features Rosenberg predicting his own assassination, saying “If you are watching this video, it’s because I was murdered by President Alvaro Colom.”
Rosenberg had been representing a client who was approached by the government to sit on the Board of the state-owned Banrural Bank. Rosenberg claimed that there was corruption within the government related to the bank and alleges that his client was murdered by the government before he could go public with details of the corruption.
Following Rosenberg’s death, activists mobilized an anti-corruption campaign. One blogger posted a message on the social networking site Twitter encouraging Banrural customers to withdraw their funds. As a result of this message, he was arrested on charges of inciting financial panic. He has since been bailed out of prison after an online fund raising campaign.
Update on BC’s Polygamy Trials
From Guatemala to British Columbia where we continue to follow the trial of Winston Blackmore and James Oler who have been charged with the criminal offence of polygamy. The Mormon leaders of the BC community of Bountiful have both pleaded not guilty and elected a trial by judge and jury. The case is now facing an roadblock. Blackmore has applied to the British Columbia Supreme Court to order the government to pay his legal costs. Blackmore already applied for legal aid and was turned down. However, his lawyer Joe Avray will argue that no defendant should bear the costs of a constitutional test case. If Madame Justice Stromberg-Stein grants the application, it could have far-reaching implications for criminal defendants.
Update: Below is a copy of Mr. Blackmore’s Notice of Application, for those of you interested in learning more about the legal argument being presented to the court.
Notice of Application – R. v. Blackmore
Feature Interview: Nancy Kinney of AdviceScene.com
Imagine a website that provides free legal information by connecting the public with lawyers and judges. On today’s feature interview, Omar Ha-Redeye sits down with Nancy Kinney, the creator of AdviceScene.com. Advice Scene is an innovative online destination that is doing just that. The site features a legal wiki, ask a lawyer and a morality meter that gauges attitudes about legal and political issues.
Kinney argues that lawyers should not be seen as the gatekeepers to specialized legal information; instead, legal information should be shared freely with the public. She suggests that this will help reduce the costs of litigation because clients with a better understanding of the law will be in a better position to resolve their conflicts without going to trial. Moreover, she argues that better-informed clients will be able to work in partnership with their lawyers without feeling that their lawyer has made all of the important decisions.
The response so far has been very positive. The site has attracted a number of lawyers and even an Ontario judge to participate by answering questions in an online discussion forum.
Music Credit
Today’s podcast uses Creative Commons licensed music from ccMixter. Our thanks to user blues_agent for his song “She of Infinite Sorrows“.
B&E or Homicide? Choose Quick!
If you had to choose between being killed, or having your house robbed while you were out or asleep, which would you choose?
Earlier today the Texas Senate passed a bill that would allow concealed handguns on campus, presumably including law schools.
According to Statistics Canada (2001), the homicide rate in Canada is 1.8 per hundred thousand. In the U.S. it’s more than three times that, at 5.5 per hundred thousand. Aggravated assault? 143 in Canada, and 324 in the U.S.
NRA supporters always claims that guns help keep America safe. And they might have a point.
Breaking and entering rates in the U.S. are lower than in Canada, at 521 per hundred thousand to 954. And motor vehicle thefts are 414 compared to 728 per hundred thousand.
But it’s just as plausible that more crimes in the U.S. are commissioned armed than not as compared to Canada. And it’s not just an American problem.
Over half the handguns discovered related to crimes in Canada were smuggled from the U.S. It’s a little better than Japan, where 30% of their illegal handguns come from the States. But then they have this big ocean separating them too.
Maybe we can feel some comfort in knowing that a full 80% of crime scene guns in Mexico were also smuggled from the U.S. And that Texas is as far from the Canadian border as possible.
Maybe.
Privy Council In Bank Ruling Wraps Jamaican Judiciary On the Knuckles, Part III
First posted on Commercial Law International on May 19, 2009.
Injunction, injunction, what´s your function?
Sorry I just could not resist. Despite my lame attempts at a joke, it is a very valid question.
What is the function of an injunction?
It is a power whereby the court may order positive action be taken or an order to refrain from acts being currently done. It may be granted at the interlocutory (that is to say at any stage before the end of a trial) or it could form part of a judge´s final judgment. In either case it is a very powerful tool of the courts and one that is not exercised lightly. Special attention, however, should be paid to the interlocutory injunction as it is a pre-trial determination, it is also a subject on which the Privy Council had a few choice words for both the Jamaican judiciary and Jamaican Bar in National Commercial Bank Jamaica Limited vs. Olint Corporation Limited.
The interlocutory injunction is best thought of as a pause button. It is designed to freeze in place the item that is in dispute by ideally preserving the status quo. However, we do not live in a static world and there are going to be winners and there are going to be losers with such an order – you could go as far as saying such an order creates only losers and worse losers. This is why judges are or ought to be extremely cautious in the exercise of this discretion. It should not be that the making of such an order – one that is done without the full rigors of a trial – be determinative of the (main) issue or issues in dispute. This is why judges look to what is called balance of convenience (American Cyanamid Co v. Ethicon Ltd) or more accurately the balance of inconvenience. As Lord Hoffman explains in the NCB case, ¨the basic principle is that the court should take whichever course seems likely to cause the least prejudice to one party or the other.¨
Having decided that Mr. Justice Jones was correct in the first instance to dismiss the case, holding that there was no triable issue, their Lordships had no need to go any further. However (a favorite word of a lawyer), their Lordships went on to deliver a dicta that wrapped the knuckles of the Jamaican judiciary and Bar – as would a school master a disobedient pupil in days of old. As many a current and former law student come to learn, while the ratio of a case deals with the issues at hand, it is often the dicta though said by the way, that is the most significant aspect of a judgment. And this I believe is the case here.
Their Lordships wanted to point out, provide some guidance and in a display of judicial politics, gave the Jamaican legal establishment scolding – that was at times not so well veiled.
There were two features of this case that troubled the Privy Council. The first was that, ¨there appears to have been no reason why the application for an injunction should have been made ex parte, or at any rate, without some notice to the bank.¨ An injunction applied for and given without presence or notice to the other party ought to be a very rare thing, ¨although the matter is in the end one for the discretion of the judge, audi alterem partem is a salutary and important principle.¨ Audi alterem partem – sorry for the Latin but it had to be done - is a fundamental tenet and a cornerstone of justice and cannot be trotted on lightly. It is the right for the other side in a dispute to be heard – like I said a cornerstone of our justice system.
Given the facts of the case, especially the nature of what was in dispute, there should have been no reason why the application for the injunction should not have been inter partes but at a minimum with there should have been some notice to the bank. As their Lordships pointed out, ¨any notice is better than none.¨ The guidance provided to judges considering such applications was made by Lord Hoffmann in no uncertain terms. He lays down the law (literally), ¨that a judge should not entertain an application of which no notice has been given unless either giving notice would enable the defendant to take steps to defeat the purpose of the injunction…or there has been literally no time to give notice before the injunction is required to prevent the threatened wrongful act.¨ The italics are Lord Hoffmann´s. Lord Hoffmann further went on to point out these two conditions are enshrined in the Section 17.4 (4) of the Jamaican Civil Procedure Rules 2002.
What characterizes both these alternatives is a sense of urgency. Olint it would seem feared that the immediate closure of its accounts would prejudice it in its main action against the bank. However such fears are not substantiated by the facts of the case. Not only was Olint given ample notice, they were given an extension. Moreover, the closure of a bank account, with or without extensive notice, is not sufficient grounds on which to say that there was no time to give notice. Their Lordships wondered why, ¨no explanation has been given for why it was not possible for the bank to be given notice of the application.¨
However, it was later explained to their Lordships that such last minute ex parte applications had become common practice in Jamaica. The recent cases of World Wise Partners Ltd v RBTT (2008) and Smith v NCB (2008) were cited as examples.
The Privy Council, expectedly, took exception to such blatant disregard for the law and the Civil Procedure Rules by both the judiciary for granting such injunctions and the Bar for applying for them. They went on to say, ¨these cases appear to show a disregard of rule 17.4 (4) for which no justification is offered. If the rule is not generally enforced, plaintiffs will be encouraged to make a tactical use of the legal process which should not be allowed.¨
Like I said a wrap on the knuckles – actually in legal terms a wrap is highly understating things.
The second feature that troubled the Privy Council was the way in which both Smith J and the Court of Appeal applied the balance of convenience test in the refusal, in the case of the former, and the granting, in the case of the latter of the interlocutory injunction. The basic principle that both had to be mindful of, ¨is that the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other.¨ Moreover, ¨what is required in each case is to examine what on the particular facts of the case the consequences of granting or withholding of the injunction is likely to be¨
It appears that what the Jamaican courts did was first to characterize the injunction as either mandatory (requiring positive action) or prohibitory while applying the balance of convenience test. Each requires different factors to be taken into account. A mandatory interlocutory injunction would require a ¨high degree of assurance¨ that the applicant would be prejudiced by its refusal, while a prohibitory interlocutory injunction required a ¨serious issue to be tried.¨ At first instance Mr. Justice Jones characterized it has mandatory and refused to grant it while the Court of Appeal characterized it as prohibitory and granted it.
As it turns out the judge at fist instance was correct in result but not in his reasoning. Because what matters is what the practical consequences of the injunction are, ¨arguments over whether the injunction should be classified as prohibitive or mandatory are barren (Films Rover International Ltd v Cannon Films Sales Ltd). Their Lordships made it clear that they ¨consider that this type of box-ticking approach does not do justice to the complexity of a decision as to whether or not to grant an interlocutory injunction.¨
Yet another wrap on the knuckles….Ouch.
It will be very interesting to see what that reaction of the judiciary and Bar will be in Jamaica. This may be a bitter pill to swallow; however, to my mind their Lordships are wholly correct in fact and in law.
Some More Climate Change Science
This time from Jonathan Patz, who shared the 2007 Nobel Peace Prize with Al Gore.
He was kind enough to share his slides.
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