The noose tightens imperceptibly

The prosecution of George W Bush for torture at Abu Ghraib and Guantánamo Bay prisons

by Gail Davidson

Lawyers against the War (LAW) learned on November 17 2004 that George W Bush was coming to Canada on November 30. Between November 17, and November 30, LAW wrote to various ministers of the Crown including the Prime Minister and the Attorney General of Canada advising them that Bush stood accused by credible and knowledgeable groups and individuals throughout the world of the most grave crimes known to law, including torture, and therefore ought, by law, to be denied entry to Canada. LAW advised the Ministers that Bush’s responsibility for torture and other crimes that he knew were being committed, or ignored through willful blindness, or failed to prevent, derives from his “command responsibility” as President of the United States of American and Commander in Chief of US Armed Forces, and also from his direct involvement in the formulation of policy. LAW received no reply to any of these letters and Bush entered Canada on November 30 th.

On that day, Gail Davidson, co-chair of LAW filed an information charging Bush for aiding, abetting and counselling the commission of torture at Abu Ghraib and Guantánamo Bay prisons. The information was accepted and filed by the Justice of the Peace at the Provincial Court of British Columbia at 222 Main Street in Vancouver, BC under court file number 128960-1.

N.B. When an information is laid by a private person, the Justice of the Peace, must refer to information to a judge for a hearing to determine whether to compel the appearance of the accused. The appearance of the accused would be compelled by an arrest warrant or a notice to appear if the information is supported by ‘reasonable grounds’.

The Attorney General is entitled to attend this process hearing and to test the evidence and grounds presented by the informant.

Because the Justice of the Peace failed to refer the information to a judge for a process hearing, Davidson attended the Courthouse on December 2 nd to request a hearing date and was advised to attend in court on December 6 th to fix a date for a process hearing. On December 6 th the Crown advised the judge that “we will not be simply fixing a date…The Crown is making an application that this information [charging Bush with torture] is a nullity.”

On the request of counsel for the Attorney General of British Columbia, Judge Kitchen proceeded to order the public and the press from the courtroom over the objections of Charlie Smith, then news editor of the Georgia Straight newspaper, and then locked and “sealed” the courtroom. Judge Kitchen proceeded to hear the Crown’s application and dismissed the information as a nullity on the basis that “Mr Bush is President of the United States, which I concluded is alleging that he is the head of state of the United States, and as such he does have immunity from prosecution under the criminal laws of Canada,” and

“as far as the jurisdiction under the Criminal Code, I conclude that the concept of diplomatic immunity still applies.”

Judge Kitchen made an order allowing publication of his decision and banning publication of the proceedings and the transcript and any exhibits or documents.

Davidson and LAW filed an application for review of Judge Kitchen’s decisions in the Supreme Court of British Columbia. (Gail Davidson and Lawyers against the War v. Attorney General of British Columbia, Supreme Court of British Columbia, Vancouver Registry No. 23447.)

On August 25 th 2005, the Application came before Mr. Justice Dohm and the British Columbia Civil Liberties Association—BCCLA, was granted standing to intervene on the issues of the legality of the orders banning publication and sealing the courtroom. Mr. Justice Dohm, at the request of counsel for the Attorney General of British Columbia, and without hearing submissions from Davidson or counsel for BCCLA, made an interim order pending argument on the issue, banning “publication and disclosure of the name, office or anything tending to identity the proposed defendant in this proceedings and the nature of any proposed charges.”

On September 29 th Mme Justice Satanove directed counsel for the Attorney General of British Columbia to provide written submissions by October 14 th as to why a publication ban was appropriate and required and to give the required notice to the media.

Counsel for the Attorney General of British Columbia did not file written submissions or give notice to the media, and on October 17, 2005, withdrew the application for a continuing publication ban and consented to orders terminating the interim publication ban made by Mr. Justice Dohm August 25 th 2005, and terminating and setting aside the publication ban issued by Judge Kitchen of the Provincial Court of British Columbia on December 6 th 2004.

The Crown is now raising a preliminary objection that the Supreme Court of British Columbia does not have the jurisdiction to adjudicate on the Application for review of the decision of Judge Kitchen because the issues raised are no longer moot.

Black’s Law Dictionary defines moot as referring to a point not settled by judicial decisions.

We anticipate, on the basis of the Crown’s correspondence, that the Crown will be basing their mootness argument on the fact that the Attorney General of Canada has not yet consented to the prosecution of George Bush as per the provisions of section 7(7) of the Criminal Code of Canada, and that the prosecution cannot continue without his consent.

LAW is confident that the Attorney General will consent to the prosecution when he has reviewed the evidence upon which the charges are based.

Counsel for the Attorney General of British Columbia has been ordered to produce written submissions on the mootness issue by October 28, 2005 and that issue will be argued on November 25 th 2005, at 10:00 a.m. at the BC Supreme Court, 800 Smithe Street.

It seems unlikely that the Attorney General’s application to have the Application dismissed on the basis on mootness will succeed. The issue of whether or not diplomatic immunity provides Bush with absolute immunity from prosecution under the criminal laws of Canada for the torture alleged in the information is a point that has never been argued before a Canadian court.

The Supreme Court of Canada has established a test for mootness that is two-fold:

• Is there a live controversy and is there an adversarial context? If the answer to this question is no, the court then goes on to consider,
• 2. Does the case raise an issue of public importance that it is in the public interest for the court to decide?

If the answer to either of these questions is Yes, the court will hear and decide on the matter even if the controversy between the parties has been decided or otherwise terminated.

N.B. Borowski v. Canada (Attorney General) [1989] 1 S.C.R. 342, 1989 CanLII 123 (S.C.C.) March 9, 1989. and Doucet-Boudreau v. Nova Scotia (Minister of Education) [2003] 3 S.C.R. 3.

The issues that have not been decided in the Application include:

• Was Judge Kitchen wrong to exclude the public and the press and seal the courtroom?
• Was Judge Kitchen wrong in failing to require the Attorney General of British Columbia to give notice of the application to declare the information a nullity?
• Was Judge Kitchen wrong in failing to allow a fair hearing of the issue of whether Bush is immune from prosecution for torture under the criminal laws of Canada?
• Is George Bush immune from prosecution for torture at Abu Ghraib and Guantánamo Bay prisons under the criminal laws of Canada?
• Is there a “concept of diplomatic immunity” that ousts or nullifies the Criminal Code jurisdiction to prosecute Bush for torture?

Stay tuned.

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