RSS FeedDiscretion, law, and Rahim Jaffer
When the Crown dropped drunk driving and cocaine charges against Rahim Jaffer, everyone seemed unhappy and suspicious. There was a lot more unity of opinion than when a Canadian woman was stuck in Africa because Canadian officials thought she didn’t look like her passport photo. Both cases involved our trust in government, and in both cases government officials had a lot of discretion in making their decisions. Our law gives Crown prosecutors discretion in laying charges. The only constraint is that they must act in public interest. The popular mindset that justifies giving this leeway to the Crown is crime control. A different philosophy is due process, which emphasizes the rights of the accused, but this approach doesn’t seem very popular politically. The actual system is hopefully something between the two. In the Jaffer case, the public wants some accountability from the Crown but it does not seem ready to swing in the due process direction. Can we hold Crown prosecutors accountable for their discretionary decisions such as laying charges? It is very, very difficult, and the only way is to bind the Crown with more rules reducing their discretion.
A cop pulled over Rahim Jaffer, a Canadian politician, because Jaffer was going 93 km/h in a 50 km/h zone. The officer ended up arresting Jaffer who failed a breathalizer test. Jaffer was charged with drunk driving, speeding, and possession of cocaine. But eventually the Crown dropped the most serious drunk driving and drug charges. The judge famously told Jaffer, “I’m sure you can recognize a break when you see one.” Search Google News for “Rahim Jaffer,” and you’ll see what firestorm this case started in Canada. The public wants accountability from the Crown for dropping the charges against an influential figure. But can it get it?
Accountability means giving reasons for decisions. It’s pretty simple. If you give reasons for your decision, we can have a competent third party review your reasons to see if you made any mistakes in facts or rules. The third party must have the power to reverse your decision or to make you reconsider. With government decisions, the third party is usually the courts. If there are no reasons for a decision, it is very hard to know if the decision is wrong. It must be so obviously wrong that no reasons can justify it. It must pretty much be an absurd decision for a court to quash it without seeing any reasons. So if a decision maker doesn’t have to give reasons, there is very little accountability.
Truly discretionary decisions never require giving of reasons. Discretion means freedom from rules. Broad principles may limit discretion but if you set rules for someone in their decision-making they don’t have discretion any more. For example, the Crown has discretion in laying charges, but they must make decisions in public interest. That’s a broad principle. But there are no rules such as “you must lay a possession charge if the cocaine was found in the car,” or “you must never refuse to lay a charge to protect a politician,” or “you must lay a drunk driving charge even if the police officer broke rules in obtaining evidence.” The Crown’s discretion in laying charges implies it doesn’t have rules like that. Discretion means we trust they will do the right thing because they are experts, or because we are scared, or because it’s the cheapest way. But that means the Crown doesn’t have to explain its decisions or they wouldn’t really have our trust. That’s why the Crown’s discretionary decisions do not require it to give reasons. If you ask, they will say that their decision was in the public interest—and they are legally right. But try to challenge a decision on the basis of a broad principle like that.
If you give someone discretion because you want to be tough on crime, don’t expect them to be accountable. It’s impossible to have your cake and eat it too. When all the law requires is that the state make decisions in the public interest, it will be very hard to prove to the courts that a particular decision is not in the public interest. The broader the standard, the heavier is the burden to prove that it was not followed. How is the Supreme Court to judge the government on what it purports to do for our common good in some secret international circles? So they decided they couldn’t in the Khadr case. And so the courts will decide they can’t interfere in the Crown’s discretion in the Jaffer case if some naive person will try to challenge the decision to drop charges. Once the law gives someone discretion, the courts will generally stay away from poking their nose. So if you want accountability from the government, you should bind it with rules instead of giving it blank checks. That’s the due process attitude, but it lasts only until the next scare when the crime control mindset takes over. Let’s hope the two will be in balance.
(Post sponsored by AdviceScene)
Standing up for the Rule of Law
Note: This piece was subsequently published on March 26, 2009 in the StarPhoenix. Available online here
Due process is a long-standing Canadian principle. It is enshrined in our legal tradition as a safeguard against the denial of liberty. It is a part of our liberal democracy that distinctly separates us from the dictatorships scattered around the world today. Yet, certain Canadians are being apparently denied their basic rights as citizens.
Consider the case of Abousfian Abdelrazik. Since 2003, Abdelrazik has languished in limbo in Khartoum, Sudan and currently lives in the lobby of the Canadian embassy. His ill-fated trip to Khartoum in 2003 to visit his ailing mother ended in secret detention under the country’s notorious domestic security agency, which newly de-classified documents show acted on the request of the Canadian Security Intelligence Service (CSIS).
He was repeatedly detained for a total of nineteen months. No charges. No trial. No conviction. A Canadian citizen – arbitrarily detained at the behest of Canada, by a disreputable foreign regime whose president was indicted this month by the International Criminal Court for crimes against humanity. Abdelrazik says he was tortured by his Sudanese captors, and has the scars to show it.
Sudan’s dismal human rights record speaks for itself. CSIS agents visited and interrogated Abdelrazik during his imprisonment. Documents reveal that Canadian diplomats in Khartoum were told to not provide him with his right to consular support during interrogations by Sudanese and American officials.
Today, Abdelrazik lives in virtual exile – denied the right to come back to Canada and to his family. Sudan says it has no reason to hold him and has cleared him of the suspicions laid out by CSIS. It even offered to fly him back to Canada.
Although the federal government has tried to get Abdelrazik removed from an international no-fly list, it has still raised road-blocks to prevent his return. When he did find ways to return, like arranging a flight out of Sudan, he was refused a passport. Why?
It is alarming to see Sudan more committed to releasing a Canadian than us. When we unlawfully outsource the detention and interrogation of one of our own to an authoritarian state, then we are going down a frightening path of injustice.
Another troubling case is that of Canadian Omar Khadr – a story well known to many of us. Captured as a child soldier in Afghanistan at the age of 15 and held for more than six years at the Guantanamo detention facility without conviction, Omar is the last Western citizen languishing in a place that exists outside the norms of law. His Canadian lawyer, Dennis Edney, has said Omar is a broken person.
Although U.S. president Barack Obama has frozen “trial” proceedings at Guantanamo and is slated to shut the facility down, we have yet to intervene and repatriate this young citizen. This stands in stark contrast to other Western nations like the United Kingdom and France, which have already repatriated their nationals.
For ourselves and our country, some important questions need to be asked. What has happened to the value of Canadian citizenship? Are we being parochial and selective in upholding the rights of our citizens?
And, perhaps most importantly, have we learned from the perilous mistakes that were brought to light during the Arar Inquiry? At this point, it does not seem like we have.
Our government must provide answers and address the unjust plight of Abdelrazik. Indeed, his case and that of Khadr demonstrate a harmful and dangerous erosion of fundamental justice and must not be taken lightly.
At the same time, our courts exist for a reason and they constitute the proper forum to mete out justice with transparency and due process. Canadian courts have successfully convicted those charged with terrorism under the Criminal Code. For example, Momin Khawaja of Ottawa was found guilty of such offences in October 2008 and and was recently sentenced to 10.5 years of jail time.
Yet, for over five years, no grounds or evidence have been offered regarding Abdelrazik. And for six years, the Americans have failed to create a just process for Khadr that is consistent with legal norms and international law.
There is no doubt that national security and collective safety are critical in times like these. But the inalienable rights and citizenship of every Canadian must be upheld and respected.
Let us stand by the timeless Canadian edifice that defines our values and separates us from the agents of chaos and the regimes of repression: the rule of law. In our cherished democracy, real security is the preservation of not only human life, but also of human dignity.
Kashif Ahmed of Law is Cool is a Board Member of CAIR-CAN. Note that this piece is provided for interest alone.
Omar Khadr’s Guanatanamo Trial Suspended!
It’s over!
For now, anyway.
Staying true to his promise, Barack Obama has made it one of his first official acts as President to request a suspension of the military tribunal process in Guantanamo.
Omar Khadr is the first beneficiary of the directive. His “trial” was suspended this morning.
The suspension will last for 120 days so that the government can explore alternatives.
The legal maneuver appears designed to provide the Obama administration time to refashion the prosecution system and potentially treat detainees as criminal defendants in federal court or have them face war-crimes charges in military courts-martial. It is also possible that the administration could re-form and relocate the military commissions before resuming trials.
…
President Obama has acknowledged in recent interviews that shutting the facility is likely to be prolonged and complex. And the administration now faces a number of potentially daunting challenges to following through on the president’s campaign promise. Obama is expected to sign an executive order soon that will lay out in detail his plan to empty the facility.
(source: Washington Post)
The military tribunal process has been roundly criticized by human rights groups, lawyers and lay people alike as a violation of the rule of law.
In his inaugural address, Obama spoke these inspiring words, which I leave you with:
Recall that earlier generations faced down fascism and communism not just with missiles and tanks, but with the sturdy alliances and enduring convictions. They understood that our power alone cannot protect us, nor does it entitle us to do as we please. Instead, they knew that our power grows through its prudent use; our security emanates from the justness of our cause, the force of our example, the tempering qualities of humility and restraint.
We are the keepers of this legacy. Guided by these principles once more, we can meet those new threats that demand even greater effort – even greater cooperation and understanding between nations.
Obama: End of Guantanamo and Good News for Omar Khadr
I have previously expressed my shame at the Canadian Government’s failure to follow the example of every other Western nation in demanding the repatriation of our citizen at Guantanamo Bay.
The advocacy in favour of Omar Khadr’s return to Canada has come from many circles. The calls have come from Sen. Romeo Dallaire, UNICEF, Amnesty International, and the Canadian Bar Association, among many others. Most consider Khadr to be a child soldier, and consider his detention and the military tribunal process to be a violation of the rule of law.
This choir of voices has finally reached a crescendo. I have good news to report.
President-elect Barack Obama has signalled his intention to close Guantanamo Bay forever – and he intends to do it soon.
In an interview with ABC’s “This Week,” Obama said:
I don’t want to be ambiguous about this. We are going to close Guantanamo and we are going to make sure that the procedures we set up are ones that abide by our Constitution.”
Reuters is reporting that Obama intends to close the prison perhaps within his first week after taking office:
“There is going to be an executive order on closing down Guantanamo,” the adviser told Reuters, adding the move would probably be made during Obama’s first several days in office.
What this means for Omar Khadr remains unclear. It will no doubt take time before the prison can be closed and its inmates transferred to face trial elsewhere. Most likely, this will mean an end to the military tribunals, which were denounced by the U.S. Supreme Court, in favour of domestic trials in U.S. Federal Court.
Stephen Harper, meanwhile, remains staunchly committed to leaving Khadr to be dealt with by the Americans, whether or not their process violates the rule of law. This is in spite of serious concerns raised by his own government lawyers. Harper is unsure of whether Obama’s announcement will substantively affect Khadr, but he remains defferential:
“The promise that president-elect Obama made was that he would close down the facilities at Guantanamo. That’s primarily, as I understand it, because of the objection to the fact that many of the people at that facility aren’t charged with anything,” he told reporters in Vancouver.
“I don’t think you can necessarily leap to the conclusion that it will affect people who have in fact been charged, and who are facing a legal process.”
One thing is clear: Omar Khadr’s languishing in that deplorable offshore prison will soon be at an end.
CBA Joins Fight to Repatriate Omar Khadr
The Canadian Bar Association has announced that it is joining with a number of other agencies to fight for the repatriation of Omar Khadr to Canada.
Omar Khadr, a 15-year-old boy at the time of his capture in Afghanistan, has been languishing in Guantanamo Bay since 2002.
Though the CBA has spoken out against Omar Khadr’s detention in the past, and has joined with other groups to call for the closure of Guantanamo Bay entirely, the Association has made the repatriation of Khadr one of its top priorities for this year.
In a statement to the House of Commons International Human Rights Subcommittee, the Bar Association explained that:
“Our commitment to justice is challenged where the individual is unpopular and accused of terrible crimes. It’s at times like this that we must speak out, and defend those rights. This is what the rule of law requires – that we recognize the rights of all, not just the favoured few.”
The CBA represents about 37,000 lawyers and law students across this country.
Follow-up: Reply Letter from Foreign Affairs Minister regarding Omar Khadr
On July 15, I posted a letter that I had written to Prime Minister Stephen Harper regarding Omar Khadr’s continued detention at Guantanamo Bay, Cuba.
The letter was signed by myself and 10 other law students.
On September 16, 2008, I received a reply letter from the Prime Minister’s Office indicating that the letter would be passed along to the Minister of Foreign Affairs who would “certainly be interested in [our] views” regarding Omar Khadr.
I looked upon that letter as a Prime Ministerial brush off. I thought it would be the end of the matter.
To the government’s credit, I today received a follow-up letter from The Honorable David Emerson, Minister of Foreign Affairs.
The entire text of the letter is reproduced below:
September 24, 2008.
Dear Mr. Gridin and Co-signatories:
The office of the Right Honourable Stephen Harper, Prime Minister, has forwarded to me on September 16, 2008, a copy of your letter (Folder: 664583) concerning the case of Mr. Omar Khadr, Canadian citizen detained at the U.S. military prison at Guantanamo Bay, Cuba.
I understand your concerns and I can assure you that the Government of Canada has an interest in Mr. Khadr’s case and in his treatment. Canadian observers have been present at his hearings before the Military Commission in Guantanamo Bay and the Court of Military Commission Review in Washington D.C. Furthermore, officials of Foreign Affairs and International Trade Canada have carried out several visits with Mr. Khadr and will continue to do so. The visits allow access to Mr. Khadr to assess his welfare and treatment, and to obtain information about his mental and physical condition.
Although Mr. Khadr is no longer a juvenile, he was 15 years old when he was alleged to have committed crimes in Afhanistan. Canada has sought to ensure that the treatment of Mr. Khadr is consistent with internationally recognized norms and standards for the treatment of juvenile offenders, and that his age at the time the alleged events occurred is considered in all parts of the process. Canada has also consistently sought to ensure that Mr. Khadr receives the benefits of due process, including access to Canadian counsel of his choice. The Canadian government has received unequivocal assurances from U.S. authorities that Mr. Khadr will not be subject to the death penalty, and indeed the charges against him were referred to the Military Commission on a non-capital basis.
In keeping with Canada’s long-standing policy, the Canadian government strongly believes that the fight against terrorism must be carried out in compliance with international law, including established standards of human rights and due process.
With respect to Mr. Khard’s repatriation to Canada, it is premature to discuss this issue since his case is still before the courts.
Thank you for taking the time to write and share your concerns.
Sincerely,
[sgd]
The Honourable David L. Emerson, P.C., M.P.
While I do appreciate the reply from Mr. Emerson, I do not accept that the government is doing enough.
Omar Khadr has been in detention for 6 years. The “several visits” during this period to check up on his well being are virtually meaningless. He has been the victim of serious psychological and possibly physical abuse at the hands of his captors.
The extreme isolation of growing up inside a military prison is unimaginable. Omar Khadr’s development from a child to an adult has been stifled, and at this point, it is unlikely that he will ever be a normal, adjusted individual.
The assurances of due process are also hollow. Omar Khadr is being tried by a kangaroo court, in proceedings that have been the subject of problems and numerous complaints. Most recently, a military prosecutor at the Guantanamo Bay tribunals resigned over “ethical qualms.”
Lt. Col. Darrel Vandeveld quit, allegedly after the government withheld exculpatory evidence from the defence.
The U.S. government denies this allegation. But internal documents obtained by the Associated Press indicate that Col Vandeveld declared to the tribunal that that “potentially exculpatory evidence has not been provided.”
He is the fourth prosecutor to quit.
In the Khadr case specifically, there have been claims that the government “manufactured evidence” against the accused.
The culture of secrecy and political implications of this case are reasons why ultimately, the military tribunal is not the appropriate forum to hear Omar Khadr’s case. Mr. Khadr needs to be repatriated to Canada immediately to face trial at home. This should be a trial subject to Canadian legal protocols and consistent with the values that we hold dear, including those enshrined in the Charter of Rights and Freedoms.
Law students across the country are organizing to put further pressure on the government on this issue. Stay tuned for more.
Omar Khadr Video Round-up
Early yesterday morning, the Canadian government, in compliance with court orders, released a video of Omar Khadr’s interrogation by Canadian Security and Intelligence Service agents at Guantanamo Bay, Cuba. The video, which is the first ever seen of CSIS agents in action, is already making waves internationally. Within hours of the release, front-page headlines were sparked everywhere from The New York Times to the BBC to Al Jazeera.
I can only hope that all of this international coverage will bring more pressure to bear on the Canadian government to step up and do something to protect this young man from the torture he faces in Guantanamo Bay. Canada must request Omar Khadr’s repatriation so that he can face trial in this country.
Below I have collected a number of videos relating to Omar Khadr:
The Interrogation Video
“Before the rage, the resignation and the tears, came the trust. Teenaged prisoner Omar Khadr seemed sure that his countrymen from Canada had come to Cuba to help him and spoke freely when they asked questions. On the second day, the reality almost visibly dawned on his face.
… Much of the material released shows Mr. Khadr — who is wearing an orange uniform — sobbing and repeatedly saying, in a moan, “Help me, help me.”
Here is a short segment of the 8-minute interrogation video that has been released to the public so far. The full 7-hour video of the interrogation is scheduled for later release by the Canadian government. The audio quality is quite poor, but if you click the link to view the video at YouTube, you will find captions of the exchange.
There is no evidence of torture on the videotape, but it is reported that:
“Documents made public last week show that Mr. Khadr was subjected to weeks of sleep deprivation by U.S. military officials before being interviewed by Canadian officials, and that the Canadians were aware of the sleep deprivation.” (The Globe and Mail)
Opposition Parties Demand Action
On May 26, 2008, the NDP MP from Windsor-Tecumseh, Joe Comartin, challenged the government to respect the findings of torture by the Supreme Courts of Canada and the United States and to demand Khadr’s return:
On June 13, 2008, the Liberal MP from Davenport, Mario Silva, questioned the government as to how much longer it would sit on its hands and do nothing to repatriate Khadr:
Romeo Dallaire Weighs In
Arguments at the Supreme Court of Canada
In May of this year, the Supreme Court ruled on the (il)legality of withholding disclosure from Khadr’s defence team. The SCC’s ruling in Khadr is what precipitated the release of the interrogation video above.
In Canada (Justice) v. Khadr, 2008 SCC 28, the court ruled that the Canadian Charter of Rights and Freedoms has some limited application outside the borders of this country. A thorough analysis of the judgment can be found at The Court, Osgoode Hall’s blawg.
Below is a video (unfortunately, quite short) of some of the arguments made before the Supreme Court in that case:
Letter to Harper regarding Omar Khadr
Below is a letter that I have written to Mr. Harper to protest the Canadian government’s treatment of Omar Khadr, one of its citizens. If you are not familiar with the story, you can find some excellent background at The Globe and Mail.
credit where credit is due: I received assistance from the staff of this blawg, but because this letter does not necessarily reflect their views, I have respected their wishes and not added their names.
A Letter to the Right Honourable Stephen Harper
Office of the Prime Minister
80 Wellington Street
Ottawa K1A 0A2
Dear Mr. Prime Minister Harper:
Re: Repatriation of Omar Khadr
I am writing to you to ask that you immediately issue a request to the relevant American authorities to have Omar Khadr repatriated to Canada.
Facts bearing on the problem:
- Omar Khadr holds Canadian citizenship;
- he was a minor at the time of his detention by American authorities;
- he has been detained at Guantanamo Bay since 2002;
- during his six years in custody, Omar Khadr has been denied habeas corpus and the due process of law; and,
- he has been subjected to, at the very least, psychological abuse amounting to torture.
The right of any person to be presumed innocent until proved guilty is fundamental to our justice system and is a principle embodied in our constitution. Thus, Mr. Khadr is an innocent Canadian citizen being tortured at the hands of the American authorities.
In addition, a number of incidents have exacerbated the situation further. Military interrogators have been caught destroying important evidence. And alternative reports have indicated that Khadr was not alone at the time of his capture, undermining the assumption that he was directly responsible for any deaths.
Ultimately however, the question of Mr. Khadr’s guilt or innocence is not relevant to whether Canada should request his repatriation. This is a question of Canada’s prestige and credibility on the international stage. Canada remains the only industrialized nation that has failed to intervene on behalf of its citizens.
There is no benefit to be gained from allowing Mr. Khadr to remain in American custody. There would be no diplomatic cost to requesting repatriation. The United States has explicitly indicated its willingness to hand over Mr. Khadr should Canada issue a request.
Conversely, the costs of failing to act are significant.
By failing to take action, when all that would be required to put an end to Mr. Khadr’s torture is a simple diplomatic request, Canada is being complicit in the gross violation of the basic human rights of one of its citizens.
In 1948, Canada became a signatory to the Universal Declaration of Human Rights. It is a source of great national pride that a Canadian, John P. Humphrey, was the principle drafter of the Declaration. Because of our extensive history of contributions to the field, Canada has been recognized as a worldwide leader in human rights.
Our policy with respect to Omar Khadr is a tarnish on this international reputation. Our inaction is interpreted by the international community as a silent endorsement of the activities at Guantanamo, including controversial acts of torture. Domestically, the faith of Canadians in this country’s commitment to human rights and the protection of its own citizens is undermined. History will judge us harshly for failing to act.
I therefore ask that Canada request repatriation of Omar Khadr and that he be tried for his alleged crimes in this country.
As a Canadian citizen and a strong believer in human rights and dignity, I cannot ignore what is happening to Mr. Khadr. Respectfully, I feel that a vote for the Conservative party in the next election would represent my own sanctioning of the policy towards Mr. Khadr. I refuse to condone the inaction of this government. Today, I am ashamed of the country I so dearly love.
Yours very truly,
[signed]
Lawrence A. Gridin,
Law Student
