This case is unusual because the accused absconded (presumably returning to Germany), and his trial proceeded without him. George Passon’s legacy highlights our criminal justice system’s various embarrassments: the bumbling rural police, the recalcitrant defense, the vindictive Crown and the snail’s pace of the proceedings all play a part in this comedy of errors overseen by the patient and cautious Justice Humphries.

First, I will overview how the investigative and judicial procedures are compromised by the nature of the crime being investigated, marijuana cultivation. This is particularly relevant given the recent Ontario Superior Court of Justice ruling in R. v. Mernegh. When busting grow-ops, cops are initially working on nothing more than a tip. Because there is no complainant, or witness, procedural requirements are sometimes applied “flexibly” out of investigative necessity.

This gives way to an onslaught of arguments from the defence, who essentially submits the entire Constitution into evidence. The trial judge is then painstakingly taken through all the arguments. She knows that she has to cut the cops some slack, as it’s damn near impossible to enforce cannabis cultivation laws in British Columbia, and convictions of drug offenders looks good in a press release. Still, she can’t grant them so much slack that the public gets wind of it and calls foul. Any misstep results in accusations of “bringing the administration of justice into disrepute.” This is such a thin line to be walking I think it’s debatable as to whether it even exists.

Here is how these stories start:

A tip, and a civil servant who discovers their department is being ripped off:

In March 2006, someone informed the RCMP to a possible grow-op near Winlaw, B.C., said to be owned by a young couple from Calgary. Two drive-by investigations yielded no evidence, and hydro records were normal. A month later, hydro inspectors alerted the police that there was a difference between actual and metered consumption of electricity at the address in question, indicating that power was in fact being diverted and stolen.

Cst. Stefani prepared The Information to Obtain (ITO) a Search Warrant by Telecommunication, later deemed necessary, as the nearest Judicial Justice of the Peace, whose authorization for search warrants is required, was (and continues to be) 500km away from their station.

Before sending it off, Sgt. Little reviewed the ITO and said they did not have enough information to obtain a warrant under the Controlled Drugs and Substances Act, so they wrote one for theft of electricity instead. The ITO requested entry to the property to quote un-quote ‘locate evidence of electrical diversion and subscriber records.’ No evidence of an electrical diverter was ever found, probably because soon after entering the abandoned main home, they found the commercial grow-op that satisfied the true nature of their inquest.

First, a judicial stay of proceedings was requested while the constitutionality of the telewarrant process in the remote area of West Kootenay was challenged. Humphries J responded by eliminating some of the Constitutional challenges and asking counsel for the accused to answer four questions about its case, and the AG of BC to answer two questions on theirs.  Read Humphries J’s judgment and questions here: 2008 BCSC 1067.  Later, she dismissed the application to have the search warrant quashed, but only at after an exhaustive review of the law and analysis of the system, found here: 2009 BCSC 192.

The investigative process:

Four RCMP secured the property, which they found abandoned. The house, garage and a large blue outbuilding (which smelled of growing marijuana) were locked. The officers forced entry into the main house and began to “tally up light bulbs” [Para 25] until they discovered a set of keys which unlocked the doors to the outbuilding.

Inside the outbuilding, some 50 yards from the main house, the officers discovered a commercial marijuana grow-operation worth between $560,000 and $1.2 million. Take note: “the expert report containing the opinion that the amount is too large for personal consumption is admitted (into evidence).” [Para 27].

A search of the two bedrooms in the residence produced a backpack containing documents belonging to Mr. Passon, including his German and Canadian passports.

Here’s a police policy that was new to me: Cst. Oster was about to be transferred, so was sent down to “guard the gate” in order to lessen the potential for him having to give evidence. I imagine he was already planning his commute to court when he saw a young man, walking alone up the muddy road from the highway, approaching the gate. The Constable asked, “Can I help you?”

“I live here,” replied the man, later identified as Mr. Passon. He was promptly arrested and given his Charter and police warnings. The admissibility of this statement was debated at length in the voir dire, but eventually dropped because it was assumed it was voluntary.

Cst. Oster did not make notes of the exact conversation, recording instead that “the owner” had arrived. Mr. Passon said that he did not want a lawyer, and because they were several hours away from Nelson, patiently remained in the back of the police car for five hours while the cops dismantled the grow-op (he was let out every half an hour to stretch his legs, during which time he was not handcuffed).

Eventually, at a loss of what to do with their suspect, the police allowed Mr. Passon to drive his own car to Nelson where he was photographed, fingerprinted and released on a Promise to Appear.

Two years later – the pre-trial procedures:

Mr. Passon’s trial began in July 2008, but for reasons (application for a stay of proceedings, ruling on the ITO, lengthy voir dire etc.), substantive evidence was not called until June 2010. After waiting a few hours, the Court asked:

The Court: The first question for me is, has he absconded?

Defence: I think we should say that he has…He’s German. Frankly, he’s always on time. If he’s not here by now, that’s an assumption we can make.

Instead of adjournment, defence requested to remain on the record and have the trial proceed in his client’s absence, as his arguments were all Charter-based, and identification was not an issue.

While s. 465 of the Criminal Code allows for this anomaly, in a recent BC Court of Appeal case (R. v. Taylor) the courts were reminded that simply losing contact with one’s lawyer does not prove that a person has deliberately absconded and that the court may proceed in his or her absence. A trial judges must make inquiries concerning whether the failure to appear was born of malicious intent, or was accidental or unavoidable.

The trial judge balked at these recent precedents and instead ordered an adjournment until the police had undertaken measures to locate Mr. Passon. She also reminded Passon’s defense of s. 475(2), which allows the court to draw an adverse inference against the accused for absconding. Defence said that he had not considered this [para 8], and agreed to the issuance of a general bench warrant. The RCMP knocked on the door of Passon’s last known address, where they predictably did not find him. The rest of the story proceeds with the general assumption that George Passon is in Germany, without his BC driver’s license but thanking his lucky stars that he got to keep his passport.

Three months later: the trial process:

Passon was charged with producing marijuana contrary to s. 7(1), and possession of marijuana for the purpose of trafficking, contrary to s. 5(2). In order to prove either, the Crown must show that the accused had knowledge and a measure of control over the blue building.

The Crown argued that Passon’s fingerprint on a coffee cup found in the outbuilding, the statement “I live here”, his backpack in the master bedroom coupled with the smell emanating from the outbuilding led to the irresistible inference that Passon had knowledge and control of the grow operation. Counsel submitted that when the adverse inference arising from his failure to attend the trial is added, the case is at least proved beyond a reasonable doubt.

The Defence referred to many cases where the evidence against the accused was stronger, and acquittals were entered. It was mentioned that:

-       The accused did not own the residence

-       There was no rental agreement implying he lived there with permission

-       None of the utilities were in the accused’s name

-       There was no odor of marijuana in the residence

-       The coffee cup could have been transported into the outbuilding after Passon arrived at the scene, as the warrant was being executed

-       The landlord (the true suspect) in pursuit of whom the warrant was originally issued was not called to give evidence, as she was still at large.

The Crown referred to some recent cases on the issue of proof of possession and control by circumstantial evidence, and the need to use common sense when analyzing the evidence, but Justice M.A. Humphries found the evidence simply suggested Mr. Passon lived or was staying at the residence temporarily.

The Court of Appeal in R. v. Dae 2010 BCCA 486 recently quoted with approval the principle form R. v. Jenkins (1908)

“…there comes a time when, circumstantial evidence having enveloped a man in a strong and cogent network of inculpatory facts, that man is bound to make some explanation or stand condemned.”

In absence of any other explanation, Justice Humphries found that there is certainly one inference that can be drawn that Passon had knowledge and control over the drugs, but there are many other possible scenarios – (perhaps he was acting as caretaker of the property for the owners, maybe he was a squatter!) but there was no evidence that he had access to or could grant access to the blue outbuilding.

While a negative inference could be drawn to buttress the Crown’s case, Justice Humphries decided she would not buttress the Crown’s case in this fashion, as there were reasonable explanations for his flight to Germany – after watching the police dismantle the grow op, sitting for five hours in a police car, and being the only person accused, it could support an inference of flight amounting from his simple knowledge of the crime.

Humphries J found Mr. Passon not guilty on both counts, but reminded the court that this does not affect his outstanding warrant, as he has an obligation to attend court. That failure will be dealt with “as the court sees fit.”

In conclusion, I would just like to note the role of the lawyer in all this mess. Had George Passon insisted on one, as was his right, I think there’s a good possibility he would be behind bars right now. The lawyer, not the criminal, is the policeperson’s natural adversary. The criminal is his work, but the lawyer is his undoing; when one is called, the carefulness of the policeperson’s work corresponding increases. While this is usually thought to benefit the accused’s treatment, it also makes his case harder to fight.

The first posting from our three Summer Editors begins on Wednesday, May 5. We begin the summer schedule with the following posting by Editor-in-Chief Professor Craig Scott.)

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On April 27, 2010, House of Commons Speaker Peter Milliken handed down his ruling on whether the Government had breached Parliamentary privilege by failure to comply with the House of Commons’ December 10, 2009, Order that the Government must produce uncensored copies of documents in a list of categories. (See Ruling on the Questions of Privilege Raised on March 18, 2010, by the Member For Scarborough—Rouge River (Mr. Lee), the Member for St. John’s East (Mr. Harris), and the Member for Saint-Jean (Mr. Bachand) Concerning the Order of the House of December 10, 2009, Respecting the Production of Afghan Detainee Documents.)  The House was, and is, seeking documents relevant to Canada’s policy and practice of transferring detainees to Afghanistan authorities and to concerns of Canadian involvement in incidents or even a pattern of torture notably by Afghanistan’s National Directorate of Security.

Today, May 3, 2010, Canadian Lawyer Online is publishing in parallel with the present posting my opinion piece entitled “Parliamentary Privilege After Milliken: What process should emerge from the Speaker’s Ruling?”  Readers may wish to read that piece first before turning to the below Open Letter sent to Members of Parliament Michael Ignatieff, Bob Rae and Ujjal Dosanjh on May 2.

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The Honourable Michael Ignatieff, MP,

The Honourable Robert K. Rae, MP

The Honourable Ujjal Dosanjh, MP

May 2, 2010

Dear Mr. Ignatieff, Mr. Rae, Mr. Dosanjh,

I am writing to Mr. Ignatieff in his capacity as Leader of the Official Opposition and to Mr. Rae and Mr. Dosanjh as the members of the Special Committee on the Canadian Mission in Afghanistan who have taken the lead for the Liberal Party. I am writing to you with my unsolicited view on matters involving the House process that is being negotiated with the Government after Speaker Milliken’s ruling. I hope you will indulge me this opinion, given that Mr. Rae and Mr. Dosanjh will know I have been following the work of the Special Committee – and the issues at stake – very closely. This letter is an open letter and may be posted on www.TheCourt.ca on May 3 or on May 4.

I believe the NDP and the Bloc Québécois are correct (a) not to be willing to re-purpose Mr Iacobucci from his current role acting for the Government, and also (b) to insist there can be no filter on production of documents seen by the designated MPs (what information can then be made public is a separate issue/stage). I would like to address these conjoined questions, followed by a note on the nature of the time that will be needed for designated MPs to examine documents produced under the House of Commons Order of December 10, 2009. Finally, I note a separate comment I have written, to be published tomorrow, May 3, 2010, by Canadian Lawyer online (www.canadianlawyermag.com) to which I refer you for two other process points, one relating to the Canada Evidence Act and one relating to information flows to relevant police services.

By way of preface, it is relevant to establish – and emphasize – Mr. Iacobucci’s present status. You will know that the Government wishes to keep referring to Mr Iacobucci as “Justice Iacobucci.” This is an honorific that, by custom, can be used in relation to a retired judge, and I have used it myself in relation to Mr. Iacobucci (who has earned it no less than any other former Supreme Court justice). But the heavy-handed emphasis on this form of address – see Ministers’ answers to questions in Question Period of March 15 for a flavour [appended] – has clearly been done to create the impression of stature and third-party neutrality. Indeed, it would not be too much of a stretch to suppose the Government wishes to plant in the mind of the average Canadian that the Government appointed an acting judge, as opposed to having hired a lawyer who once was a judge. As well, even as the Government designates him as “Independent Adviser” (in his Terms of Reference), he is presently acting in some sort of capacity as a confidential adviser that will probably turn out to be a solicitor-client relationship with the Government.

Indeed, we are entitled to assume that Mr. Iacobucci and the Government view him as having been hired to give legal advice. Part of the problem is that, to my knowledge, the Government has not been up-front about whether they consider themselves to have hired a lawyer qua lawyer, but, when push comes to shove, that is almost certainly the capacity in which Mr. Iacobucci will turn out to have agreed to act. I am assisted in this supposition by the failure of both Ministers Nicholson and Baird to specify Mr. Iacobucci was not hired qua lawyer in answers to questions by both Mr. Rae and Mr. Dosanjh in the House on March 15, 2010. On that occasion, both of you referenced what you assumed was Mr. Iacobucci’s role as a lawyer in your questions. Mr. Dosanjh referred to the Government having “hired …yet another lawyer” and expressed concern that Mr. Iacobucci “will not be able to release his report to the public if the government claims solicitor-client privilege.” Mr. Rae said in the same session, “There is a difference between starting a public inquiry and simply finding a new lawyer who does not have the power to do the necessary work.” That both questioners assumed Mr. Iacobucci was acting as lawyer is clear as day; neither Minister having corrected this impression, I conclude that it must be the case. By the way, it may well be that the Government has since confirmed that Mr. Iacobucci is acting as the Government’s lawyer in his capacity as “Independent Adviser” but I have not been able to confirm this from a search of Hansard or the news reports.

In my opinion, the House does not now have time, within the deadline given by Speaker Milliken, to sort out the complexities of what it means, from a practical and/or legal-professional perspective, for Mr. Iacobucci to simply move over from the Government as his “client” (you will recognize that this was Speaker Milliken’s own very pointed choice of word in his ruling) to being some sort of adviser (lawyer?) to the House. For example, there may be things he has been told or heard from Government officials or Government lawyers that could constrain what he can say or do if he moves over from advising the Government – unless the Government waives solicitor-client confidentiality entirely. Just a couple examples may suffice. If the Government considers certain sets of documents (by subject-matter or by type of document) to not fall within the list of document categories of the House’s Order of December 10, 2010 – a list that Minister Baird said, on March 15, would be the basis for Mr. Iacobucci receiving all documents he wishes to see – and has told this to Mr. Iacobucci in response to a query from Mr. Iacobucci, is this confidential information from a solicitor-client perspective? Or, if, again despite what was said in the House, the Government actually declined to give a specific document or set of documents to Mr. Iacobucci, or is in some sort of to-and-fro with him over whether a document is relevant, will he be able to tell the House of the document’s existence? Or, if Mr. Iacobucci generated a series of queries of the Government in an effort to make sure he was getting all the documents he felt entitled to receive, are those queries – and their results – confidential?

In light of such examples, do the Opposition parties really want to spend time arguing with the Government that they must waive any confidentiality in Mr. Iacobucci’s previous relationship with the Government? Have no doubt that such waiver is an absolute must. Also, there are Law Society of Upper Canada Rules of Professional Conduct that indicate that a lawyer cannot switch sides in the same matter without the consent of the former client. Will the Government take the view that their “Independent Adviser”, who is also their lawyer, will also be the House’s lawyer whatever label the House gives to his advisory role? One must assume this will be their likely interpretation, and so, at minimum, you would need also to get the Government’s explicit (not just implicit) consent to allow him to act for the House. Perhaps the Government will act with an uncharacteristic attitude of accommodation and provide both the confidentiality waiver and the new-client consent without a tussle, but the game (of securing Mr. Iacobucci’s services) is certainly not worth the candle if the government hems and haws on this.

Quite apart from the foregoing, Mr Duceppe was correct to note that Mr. Iacobucci voluntarily accepted to serve a cloaked process that was clearly, indeed palpably, designed by the Government to sidestep the Order of the House of December 10, 2009, and more generally to keep Parliament and the public out of the picture as much as possible. There are issues related to the appearance of independence in the eyes of the public that Mr. Duceppe may have been getting at, and which need to be taken seriously.

However, in my view, especially if the House process is going to rely on a single adviser or give one adviser a paramount role, I believe the House would benefit much more from the advice of legal professionals – not to mention one or more non-lawyer experts in security matters (e.g. former head of CSIS Reid Morden) – who both have no current connection to the Government and are, as well, knowledgeable about (indeed, ‘wise to’) the tendency of the Government at large, the military and the intelligence services to employ arguments that cast an exceptionally wide net over information.

Such a tendency is very much a problem with respect to the criterion of “international relations” as one of the three criteria for treating information as sensitive and thus secret. This term, found in Mr. Iacobucci’s Terms of Reference and taken from the Canada Evidence Act, is simultaneously extremely broad and undefined, such that one’s executive-leaning perspectives could well become important in giving content to that criterion if it is kept as a criterion within the House process. It is enough that “national security” and “national defence” – the two other criteria in both the Canada Evidence Act and the Iacobucci Terms of Reference – can be argued by the Government to be very broad indeed, and that the Government will be able to call upon a phalanx of seasoned and oft-pugnacious in-house Government lawyers to argue against release of information to the public. In such a context, the House needs to be fully empowered with an advisory team who one really should be looking to be counter-weights to what the Government will throw at MPs.

If, once the House’s own advice is taken care of, a third-party actor is needed to mediate or arbitrate on what can be released for public view, note that there are well-situated sitting judges who may well be asked to assist the process. Justice O’Connor of the Ontario Court of Appeal (and of the Arar Commission of Inquiry) comes to mind immediately. The Arar Commission was a very different process from the Internal Inquiry regarding Mr. Almalki (and others) that was run by Mr. Iacobucci. The Arar Commission was one in which the public interest in transparency was central to the role Justice O’Connor had to play – a context much closer to the upcoming House process, I would suggest, than the behind-closed-doors baselines of the Almalki Internal Inquiry presided over by Mr. Iacobucci. I would add that Justice O’Connor gained immense experience tussling with the Government over a wide range of information-related issues versus the much more limited difference of opinion Mr Iacobucci had over several pages of observations in the Almalki Inquiry context.

There is another sitting judge who is highly respected (at least, outside Government and, I suspect, by most Government lawyers as well) for how he handles national security law cases. Judge Richard Mosley of the Federal Court has the reputation of being a truly neutral and even-handed judge. He seems to have an independent cast of mind and, in security-related cases before him, does not accept uncritically what the Government and intelligence services argue. For example, he seems to be demanding when presented by the Government with arguments based on the “mosaic theory.” On that ‘theory’, as you will know, even an innocuous piece of information can be argued (indeed, argued more or less on the basis of ‘trust us, we know’) to be sensitive information on the basis that, if it is added to other innocuous pieces of information that may also get into the public domain, a mosaic emerges that, in the hands of adversaries, may harm Canada’s national security. Whatever the extent of the validity of the mosaic theory, it is easy to imagine the abuse of the theory and the corresponding need for a seasoned response to its invocation.

If there is one theme to the above, it is this: it is important that the decision-making process of MPs – once the documents are seen by designated MPs – leans as much as possible towards transparency rather than replicating the instincts of this Government (and, to be fair to this Government, by times previous Liberal Governments as well) to keep almost everything possible from the public.

I have worn out my welcome by now, I am sure, but please allow me to comment on one further matter. Commentators seem to be repeating, somewhat unreflectively, the notion that, since thousands of pages are potentially at issue, sorting through them could take ages – and this then gets linked to some parties’ concerns not to lose MPs to a process of sitting in a room sifting through documents. With respect, this notion seems to be based implicitly on the false assumption that all these documents will need to be gone over with a fine-tooth comb, as if each and every one stands an equal chance of needing to be redacted. However, this would not seem to be the case, because designated MPs’ task will naturally be to look for material relevant to the concerns that have been raised for the last many months. This involves concentrated skim-reading, not close reading of everything nor redaction. When potentially relevant documents are noticed, they can be pulled for a closer read and then for discussions and likely debate on possible redaction. Even then, redaction will only be necessary at the stage at which the question is the release of documents to the public versus, for example, an in camera session of the Special Committee.

If, on the other hand, the concern is that MPs on the Special Committee wish to be able to debate and publicly comment on what may turn up in the documents, without fear of inadvertently giving away anything that is truly sensitive information (because they will have seen the non-redacted version prior to the creation of the redacted public version), then there is no choice but for redaction decisions to be made by some House process other than the Special Committee before getting to the Special Committee. But it would be a grave error to think that this pre-Special Committee process would not itself need to have MPs as part of it. MPs must indeed be part of it, and, as outlined above, they need to be familiar enough with the detainee transfer issue to be able to efficiently find the most relevant documents (in the skim-reading process I noted above). Yet, again, even this redaction process should not be anywhere near as time-consuming as many seem to be assuming because this is not a situation of every single document needing to be excised of sensitive information before it gets to the Special Committee. Vast numbers of documents with sensitive information may fall within the broad categories of documents indicated in the December 10 House Order but be of no interest, or of no immediate interest, to the Special Committee, and therefore redaction does not come into the picture for these documents and is therefore not part of the time equation.

Thank you for considering these views. I wish you, your colleagues in the other Opposition parties, and the Government well in the negotiations this week.

Yours sincerely,

Craig Scott, Professor of Law,

Director, Nathanson Centre on Transnational Human Rights, Crime and Security,

Osgoode Hall Law School,

4700 Keele St, Toronto, Ontario, M3J 1P3, Canada

APPENDIX – Extracts from March 15, 2010, Hansard

Afghanistan

Hon. Bob Rae (Toronto Centre, Lib.):

Mr. Speaker, last week the Prime Minister of Canada said in the House that Justice Iacobucci would conduct a thorough inquiry into the issue of Afghan detainees. At the end of the week, we learned that Justice Iacobucci does not even have the power to subpoena new documents.

Why did the government not do what the Prime Minister promised last week?

[English]

Hon. John Baird (Minister of Transport, Infrastructure and Communities, CPC):

Mr. Speaker, here is what the Prime Minister did say in this place last week. He said that he had requested Justice Frank Iacobucci to undertake an independent, comprehensive and proper review of all the redacted documents related to Taliban prisoners. Justice Iacobucci will look at all the relevant documents going back not just with respect to this government but even to the previous government.

He will report on the proposed redactions, how they genuinely relate to information that would be injurious to Canada’s national security, national defence or international interests. We should have confidence in a man of this gentleman’s esteem.

[Translation]

Hon. Bob Rae (Toronto Centre, Lib.):

Mr. Speaker, we have the utmost confidence in Justice Iacobucci; that is not the question. It is not him that we have a problem with, it is the government. There is a difference between starting a public inquiry and simply finding a new lawyer who does not have the power to do the necessary work.

I have a very simple question: why not have a public inquiry to finally get to the bottom of things?

[English]

Hon. John Baird (Minister of Transport, Infrastructure and Communities, CPC):

Let me be very clear, Mr. Speaker. Justice Iacobucci will have access to all relevant documents. He will be able to review them. He will be able to undertake his activities in an independent fashion. He will be able to do it comprehensively. He will have the ability to review all of the documents and report back not just to Canadians but to this House.

We should trust Justice Iacobucci and let him do his work.

Hon. Bob Rae (Toronto Centre, Lib.):

Mr. Speaker, we trust Mr. Iacobucci. We do not trust the government. That is the difference, and there is a big difference.

Mr. Iacobucci does not have the power to subpoena the documents. The test of relevance is a test that the government itself will apply. It is not Mr. Iacobucci who determines what relevance is.

Again, I ask the minister, why not have a public inquiry and give Mr. Justice Iacobucci the powers that he so richly deserves to do the job that Canadians want him to do? That is the question.

Hon. John Baird (Minister of Transport, Infrastructure and Communities, CPC):

Mr. Speaker, we have said Justice Iacobucci will be able to look at all relevant documents. How does one find relevant documents? Exactly from the motion the Liberal leader put forward. He can also look at all documents related to this issue.

Also, he will not need to subpoena documents because the government has been incredibly clear that we will provide him with all of the relevant documents. Let Justice Iacobucci conduct his review, let him report back to Parliament, let him report back to Canadians who have confidence in a man of this character.

Hon. Ujjal Dosanjh (Vancouver South, Lib.):

Mr. Speaker, instead of being asked to conduct a full public inquiry, a respected jurist has been hired as yet another lawyer by the government. He will only see what the government gives him. He will report to the government. He will not be able to release his report to the public if the government claims solicitor-client privilege.

If the government really wanted answers, it would give Mr. Iacobucci the mandate to conduct a full public inquiry, or are there horrible secrets that the government is trying to hide?

Hon. Rob Nicholson (Minister of Justice and Attorney General of Canada, CPC):

Mr. Speaker, that is completely untrue. As we have indicated and as was indicated in the terms of reference, Mr. Justice Iacobucci will have access to all relevant documents. He will complete a proper review and he will report those general findings to the public. This should have the support of the hon. member.

Hon. Ujjal Dosanjh (Vancouver South, Lib.):

Mr. Speaker, according to the terms of reference, the government will decide what is relevant and give it to Mr. Iacobucci. He will not have the power to subpoena other documents or the authority to release his opinion publicly. He will not be able to reveal the whole story to Canadians and there is no end date for his work to be completed. We are right back where we started.

Why will Mr. Iacobucci not “conduct a thorough inquiry”, as the Prime Minister said last week? What damning secrets is the government trying to hide?

Hon. Rob Nicholson (Minister of Justice and Attorney General of Canada, CPC):

Mr. Speaker, we are providing all the documents that are of interest to the members of the House, and we are going beyond that. We are going back to 2001, which was the beginning of our involvement in Afghanistan.

Mr. Justice Iacobucci will have complete authorization to have a look at those. Again, he will report those general findings back to the House.

Though the affair has occasioned much protest in Spain, commentators elsewhere, such as Professor Eric Posner and the American Enterprise Institute’s Marc Thiessen, find little to oppose in Garzon’s “comeuppance”. Posner, for instance, strikes a particularly vindicated tone in the Wall Street Journal, writing that “this trial marks the end of a failed experiment in international justice” and “should be a warning to those who place their faith in the [International Criminal Court] to right the world’s wrongs.” I would argue that Garzon’s indictment only serves to highlight the cognitive dissonance in the argument as a whole. Universal jurisdiction, particularly its national exercise as complement to the ICC, hardly needs to be abandoned simply because a single “super-judge” has been accused of overreach. Nor does the idea need to be written off on the grounds that, without a recognized universal authority, the current political order requires that a presumptively benevolent American guarantor/hegemon be exempt from principles that its own post-WWII governments largely established, and from which universal jurisdiction’s norms are derived. In this case, the peculiar circumstances surrounding Garzon’s indictment make a mush of one of universal jurisdiction’s more plausible criticisms. The criticism holds that judges like Garzon, assumed to be armed only with judicial abstraction and lacking knowledge about local sensitivies and nuances, may undermine the efforts, in the aftermath of severe civil convulsion, towards reconciliation of historical divisions in the states whose leaders they presume to judge.

Spain provides a good illustration of the sort of polity for whom legal “reconciliation” seems to have accomplished little. Enacted upon Franco’s death and the restoration of the constitutional monarchy, Spain’s 1977 Amnesty Law provided that all crimes committed by either side during the Civil War, and which were characterized by “political intention”, were immune to prosecution. For the period between 1939 and 1975, the amnesty applied broadly, though only to the remaining side. Thus, Garzon’s charges (brought by a trio of rightist Spanish organizations that includes Franco’s nominal corporate heir, Falange Espanola) stem from his inquiries, abandoned in 2008, into “the killings of 114,000 people at the hands of Franco’s supporters during the 1936-39 civil war and the dictatorship that followed”, as well as contemplating the “exhumation of at least 19 mass graves.” The judge’s defenders distinguish between “political” crimes committed by the state and and those that constitute crimes against humanity; in Garzon’s words, “any amnesty law that seeks to whitewash a crime against humanity is invalid in law.” Garzon’s opponents uphold the amnesty law’s validity, and the illegality of what they maintain is his retroactive application of Spanish universal jurisdiction law.

It does not appear that recent Spanish governments, not to mention the country’s remarkably politicized judiciary, have paid the amnesty any more than lip service. In 2007, Jose Luis Zapatero’s Socialist government enacted its Law of Historical Memory, which “provided for state help to families wanting to open the mass graves to recover and identify the victims, promised the removal of fascist statuary and symbols from public places, and outlawed political rallies at the [Franco-built] Valley of the Fallen, which had become the focus of modern fascist activities.” The law appropriately promised only “moral redress” to Franco’s victims, “explicitly condemned Franco’s dictatorship…and nullified all Franco-era criminal law and punishments on the grounds that ‘they were defective in form and substance.’”

Responding in part to Garzon’s 1998 attempt to have General Pinochet extradited from the UK, Henry Kissinger cautioned in 2001 that magistrates wielding universal jurisdiction tend to “substitute [their] own judgment for the reconciliation procedures of even incontestably democratic societies where alleged violations of human rights may have occurred.” Whatever its (debatable) pertinence to Chile’s example, though, Kissinger’s criticism thins in light of post-Civil War Spain. Given the remarkable continuities among Spain’s political antagonists, and the sheer sweep of its 1977 Amnesty Law, one could justifiably say that Kissinger’s objections are as ungrounded and insensible to local difference as are his targeted magistrates. Relative to, say, South Africa’s Truth and Reconciliation Commission, upon whose warm, particularist memory the critics of universal jurisdiction seem to rely, the guarantees of amnesty in Spain’s “reconciliation procedures” are instrumental, less to do with candid political self-examination than expediency and universal immunity for the state and its agents.

How, then, should Spain’s 1977 amnesty be regarded, both legally and in terms of national reconciliation? Kissinger says, “The decision of post-Franco Spain to avoid wholesale criminal trials for the human rights violations of the recent past was designed explicitly to foster a process of national reconciliation that undoubtedly contributed much to the present vigor of Spanish democracy.” The notion of healthy democratic “vigor” seems exceedingly strange in context of Garzon’s indictment, as well as its source in a vestigial fascist party’s objection to the exhumation of seven decades’-old mass graves. Discussing the Chilean junta’s own amnesty (which it granted to itself in 1978), Professor William Burke-White writes that blanket amnesties are perforce illegitimate. Characteristically, they are disconnected from the wounded body politic in both purpose and effect, “effectively erasing a decade or more of abuse, repression and violations with the stroke of a pen”. Worse, according to Burke-White, such amnesties typically fail to provide victims with any means of civil or (non-criminal) investigative redress, which is surely prerequisite to the sort of “organic” political reconciliation that Garzon’s critics claim to be defending. Granted, Spain’s post-Franco amnesty is distinguishable from the Chilean example Burke-White condemns, not least because the amnesty enjoyed broad support from both left and right at the time the law was passed. As well, even recent Spanish commentators such as leftist historian Andreu Mayayo can write, in response to those “who argue Spain needs a kind of Nuremberg Trial to set things to right,” that post-Nuremberg de-nazification was marked by “timidity”, and that it is reasonable to ask “what a realistic alternative to the 1977 legislation would have been.”

But the real question is not so much what Spain should have done instead of enacting its blanket amnesty so much as it is what it should do now. Perhaps Spain should not be busying itself erasing all physical remnants of Franco’s regime. But Baltasar Garzon’s abortive investigations into Franco-era crimes and mass graves, though they may have contravened the letter of the 1977 amnesty and are the occasion of a good deal of schadenfreude (though not yet much in the way of useful criticism of universal jurisdiction), were notable for their sobriety and balance. That is, Garzon’s investigations displayed the sort of sobriety and balance that Garzon’s critics maintain is both intrinsic to a nation’s reconciliation with a violent past, as well as inimical to juridical “zealots” that claim to exercise universal jurisdiction.

In March 2009, the Prosecutor brought an application before the Pre-Trial Chamber for an arrest warrant pursuant to article 58(1) of the Rome Statute (the “Statute“). The latter is the treaty that established the ICC. In its decision, the Pre-Trial Chamber outlined three requirements for the arrest warrant to be issued. There must be: (a) reasonable grounds to believe at least one crime within the jurisdiction of the Court has been committed; (b) reasonable grounds to believe that Mr. Bashir has incurred criminal liability for such crime under any of the modes of liability provided for in the Statute; and (c) the arrest of Mr. Bashir must appear to be necessary pursuant to article 58(1) of the Statute. With regard to the last requirement, the Pre-Trial Chamber shall issue an arrest warrant if the arrest appears to be necessary to ensure the accused appears at trial, prevent the obstruction of justice, or prevent the continuance of the commission of the crime. While the Prosecutor was able to satisfy all three requirements for war crimes and crimes against humanity, it was unable to do so for genocide based on the Pre-Trial Chamber’s erroneous adoption of a higher standard of proof with regard to article 58(1).

The Pre-Trial Chamber applied a higher standard of proof by creating a “proof by inference” test. For there to be “reasonable grounds to believe that a crime was committed” pursuant to article 58, the Prosecutor would have to show that there was specific genocidal intent. The Pre-Trial Chamber held that an inference of genocidal intent may be drawn on the basis of all the evidence weighed together, even where each factor on its own may not warrant such an inference. Its judicial error arises out of the requirement that the existence of the genocidal intent be the only reasonable inference available on the evidence in order for this inference to be drawn. Applied to the facts at hand, the Government of Sudan’s genocidal intent would “only be met if the materials provided by the Prosecution in support of the Prosecution Application show that the only reasonable conclusion to be drawn there from is the existence of reasonable grounds to believe in the existence of [the Government of Sudan's] dolus specialis specific intent to destroying the whole or in part, the Fur, Masalit and Zaghawa groups” (emphasis added).

In other words, the Pre-Trial Chamber interpreted the phrase “reasonable grounds to believe” in article 58(1) to impose a hefty burden on the Prosecution to disprove any other reasonable conclusion and eliminate any reasonable doubt. It is only where there are no other possible options that there will be reasonable grounds to believe that the required specific genocidal intent exists for a mere arrest warrant to be issued. This type of reasoning is reminiscent of the criminal conviction standard in article 66(3), which is “proof beyond a reasonable doubt”. It is surprising to see the Pre-Trial Chamber straining itself to interpret article 58(1) as narrowly as possible so as to heighten the standard of proof in such a significant and well publicized human rights case. Moreover, it is difficult to understand why the Pre-Trial Chamber is requiring what amounts to a level of certainty in a preliminary stage. There is a reasonable rationale for a higher standard of proof during the adjudication of a conviction or the confirmation of a conviction, which is the opportunity to present more in-depth evidence during trial. By requiring the Prosecutor to exclude all other possibilities so that only the existence of reasonable grounds of the specific genocidal intent remains is tantamount to a mini-trial.

It should be noted that the Prosecutor was the co-author of its misfortune at the Pre-Trial Chamber. The Chamber adopted the Prosecutor’s line of reasoning in order to come up with the “proof by inference” test. Due to a lack of direct proof of genocidal intent at the time of its application, the Prosecutor was forced to rely upon proof by inference. In what seems like self-sabotage in retrospect, the Prosecutor was the one who argued that the standard of proof in article 58(1) would only be satisfied if there were no other reasonable conclusion to be drawn except that there were reasonable grounds to believe that there was specific genocidal intent to destroy the Fur, Masalit and Zaghawa groups. As a matter of pure legal strategy, the Prosecutor fell into a trap planted by itself when the Pre-Trial Chamber used the resultant higher standard of proof to cut down the evidence presented to prove genocidal intent.

The Appeals Chamber’s reversal of the lower court means that the Prosecutor can reapply for an arrest warrant on the charge of genocide. Given the need to properly assess the substance of the application, the Appeals Chamber refused to issue the warrant itself. Arguably, there was more at play than respect for jurisdiction when the Appeals Chamber refused to exercise its discretion to issue the warrant. The horrific nature of the allegations strongly tug at the heart strings, and call out for Mr. Bashir to be arrested on the charge of genocide. Implicitly, the Appeals Chamber recognizes the need to properly adjudicate these types of politically charged legal problems in a fair manner. In a time where political support in the African Union has allowed Mr. Bashir to evade arrest, the ICC must use extra effort to properly adjudicate legal issues. When it makes mistakes on run-of-the-mill criminal principles such as the standard of proof, the ICC cannot cut corners to remedy its mistakes without the repercussions of undermining the legitimate claims of victims and its reputation as a legal adjudicative body.

Upon landing and being taken into custody by Customs officials, no one could quite blame Abdulmutallab for thinking he was heading to Guantanamo Yemen. Indeed, Abdulmutallab was subjected to an entire 52 minutes of question by federal agents. But then a funny thing happened. The agents were replaced by a new team of federal agents who, acting on instructions from Washington, promptly read Abdulmutallab his Miranda rights and provided him with a lawyer. Not surprisingly, Abdulmutallab instantly clammed up and refused to divulge any more top secret information (for example, Osama’s whereabouts).

On December 26, Abdulmutallab was indicted in the United States District Court in Michigan. The move drew the ire of many, with Republicans blistering in their response. Maine’s Susan Collins complained that the Obama administration made a terrible mistake to “treat a foreign terrorist who had tried to murder hundreds of people as if he were a common criminal”. In a letter to Attorney General Eric Holder, all the Republicans on the Senate Judiciary Committee questioned why Abdulmutallab was treated as a criminal suspect rather than an enemy combatant. In response, the Democrats argued that Republicans were “politicizing” the bombing, in a manner inconsistent with former President George Bush’s choice to try shoe bomber Richard Reid as a criminal back in 2001. Back when Reid was tried in federal court, Judge William Young famously said:

You are not an enemy combatant, you are a terrorist. You are not a soldier in any army you are a terrorist. To call you a soldier give you far too much stature.

Political agendas aside, what then serves as the basis for deciding whether to view a terrorist as a criminal or an enemy combatant?

The Law Enforcement Paradigm

The traditional approach to viewing terrorism has been to consider it as a criminal phenomenon to be dealt with using normal law enforcement methods. Under this paradigm, the same measures that are used in combating crime – investigations, trials, and incarcerations – should be used to combat terror. The inherent checks and balances of these systems protect the human rights of accused persons. After all, human rights law exists to protect the minorities and the most vulnerable in our society. Who is a terrorist but an outcast, a minority, one that needs the very protection that human rights laws proclaim to give?

As the strength of terrorist organization grows, however, the traditional paradigm has been reformulated in order to grant authorities stronger enforcement powers to better combat terrorism. For example, after 9/11 the United States adopted The Patriot Act, which in part allowed invasive powers of search and surveillance, detention, and seizure of property which previously had not been allowed because they compromised human rights and basic freedoms. This increase in enforcement powers thus compromises the human rights of people suspected of terrorist activity.

In Charkoui, the Supreme Court of Canada ruled that legal proceedings which allow prolonged detention of terror suspects based upon confidential evidence and limited judicial review violate the s. 7 Charter rights of liberty. In order to use the Law Enforcement Paradigm effectively, therefore, the human rights of suspected terrorists may be severely curtailed; alternatively, adherence to human rights law will obstruct the State from adopting measures in order to effectively combat terror. As a result, whether to prevent spillover effects from diluting human rights or law or in effort to effectively be able to combat ever increasingly sophisticated terrorism, there has been a paradigm shift towards the Armed Conflict Paradigm.

The Armed Conflict Paradigm

In view of the resources available to terrorist organizations that allow them to inflict as much, if not more, damage as some standing armies, the war on terror has been viewed in many quarters as essentially a military conflict. While in a Law Enforcement Paradigm it is the Judiciary that combats criminals, in an Armed Conflict Paradigm it is the Executive that fights a war. No longer bound by the strict Law Enforcement rules, under this Paradigm the executive may use targeted killing, lengthy administrative detention, and any similar tools that are analogous to those used against enemy forces in times of war.

While the Executive can doubtless act speedily and mobilize the resources of the nation in combating terror, there are two primary concerns with the Armed Conflict Paradigm. First, it is questionable whether international law truly analogizes terrorist activity with enemy state action. Where the level of violence is extremely high and cannot be adequately dealt with by the Law Enforcement Paradigm, however, a nation’s right to self-defense has been extended to allow for military action. Second, there is a concern that the Executive may use terrorism as a pretext for military action, rather than legitimate defensive strategies.

Conclusion

The increased power of terrorist organizations has forced a shift away from the traditional framework of the Law Enforcement Paradigm. In order to adequately combat terror, restrictions would have to be placed on human rights. Essentially, there is a tension between human rights laws aimed at preventing abuses by the State and limiting these same rights by endowing the State with increased powers to combat terrorism. Furthermore, the Law Enforcement Paradigm is reactive rather than proactive: it responds to the results of terrorism rather than the threat from terrorism.

By only allowing federal agents just over 50 minutes to question Abdulmutallab, a valuable opportunity to combat the existential threat of terrorism, particularly from al-Qaeda, was lost. At the time, White House spokesman Robert Gibbs attempted to defend the short interrogation period claiming that “FBI interrogators believe they got valuable intelligence and were able to get all that they could out of him”.  Oddly enough, however, on February 2 senior officials stated that Abdulmutallab was co-operating with officials and had provided “actionable intelligence”. Somehow it seems that the first interrogation wasn’t quite comprehensive enough. Furthermore, six weeks is quite a delay to act on “actionable intelligence”. One has to presume Osama’s real estate agent has already put Osama’s cave up for sale.

The limits of the Law Enforcement Paradigm, in turn, argue for the necessity of exploring the Armed Conflict Paradigm. Yet the legitimacy of entering the Armed Conflict Paradigm only extends insofar it is necessitated to combat that existential threat. In other words, the existence of a terrorist with information that could help combat terrorism should have placed Abdulmutallab squarely as an armed combatant. Once that information was gathered – and by all accounts Abdulmutallab was initially singing like a canary – the paradigm should once again shift back to the Law Enforcement model. At that point, by all means, indict and try Abdulmutallab with all the protections of human rights law.

Obama could have looked at Jose Padilla and Ali al-Marra, charged and detained on U.S. soil as an example of how to approach this contentious issue. In that case, the pair were initally designated enemy combatants but were eventually tried and convicted in Federal Courts. This time, however, the U.S. administration went ahead with the decision to handle Abdulmutallab in criminal courts without consulting FBI director Robert Mueller, National Counterterrorism Center director Michael Leiter, Director of National Intelligence Dennis Blair, or Homeland Security Secretary Janet Napolitano. While the intention to enshroud Abdulmutallab in all the protections the Federal Courts have to offer may be admirable, when facing enemy combatants one should be wary of the deficiencies of the Law Enforcement Paradigm.

The Claim

The corporate defendant, Green Park International Ltd., is a Quebec-registered corporation that has been involved in constructing and developing settlements for Israelis on occupied land in the West Bank. The land in question falls within the territory of the village of Bil’in. The plaintiffs are the Village Council of Bil’in, as well as Ahmed Yassin, now deceased, who claimed to own part of the land in dispute.

The structure of the claim is somewhat intricate. The plaintiffs allege that the corporate defendants are engaged in constructing residential buildings intended for Israeli civilians on village land, in furtherance of an Israeli state policy of inducing its civilian population to settle occupied territory with the ultimate objective of facilitating the eventual assimilation of these lands into its own territory.

The West Bank is not part of Israel but has been under Israeli military occupation since 1967. Thus, it falls squarely within the purview of the Geneva Conventions, which set out much of the international law with respect to military occupation. Under Article 49(6) of the Fourth Geneva Convention, it is illegal for an occupying state to “transfer parts of its own civilian population onto the territory it occupies” (the same prohibition is also set out in Article 8(2)(b)(viii) of the Rome Statute of the International Criminal Court). The plaintiffs allege that Israel is in breach of this law, and that the defendants are assisting in this breach.

Under international law, it so happens that a breach of Article 49(6) of the Fourth Geneva Convention is classified as a war crime. The term “war crime” has no clear, universally accepted definition, but essentially war crimes are those violations of the laws of war so grave that they have been specially designated by the international community as an extraordinary class of offence whose reprehensible nature would “shock the conscience of all right-thinking people” (to use the words of Cory J. in R. v. Finta, [1994] 1 S.C.R. 701). Laws against war crimes are generally aimed at atrocities against civilians, prisoners of war, and other non-combatants.

A war crime, to put it succinctly, is a very serious matter. Further, it is easy to see why the offence in question falls into this special category. Article 49(6) is essentially a law to prevent colonialism. One need look no further than the current condition of the indigenous peoples whose domain once spanned the entire expansive breadth of this continent to appreciate the gravity of the consequences territorial dispossession can inflict upon a population. Most war crimes deal with offences against individuals or groups of individuals, but the offence in Article 49(6) is one that threatens the integrity of an entire people. It clearly qualifies as an exceptional offence of higher order that is of grave concern to the global community as a whole.

The plaintiffs’ allegation that the defendants are participating in war crimes is not only very serious but highly politically charged. Thus, although the Geneva Conventions Act, R.S.C. 1985, c. G-3, and the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, confers on Canadian courts criminal jurisdiction over war crimes committed anywhere in the world, a prosecution of the Bil’in defendants would never proceed in Canada. Under the Canadian legislation, it would require the personal consent of the Attorney General or Deputy Attorney General, which, due to such political considerations, would be next to impossible to obtain. However, the plaintiffs have framed participating in war crimes as a civil wrong, invoking the standards of conduct articulated in the Geneva Conventions Act and the Crimes Against Humanity and War Crimes Act to argue that the defendants are liable in tort under Article 1457 of the Civil Code of Quebec, R.S.Q., c. C-25, which sets out the basic principle of extra-contractual civil liability under Quebec civil law:

1457. Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.

In bringing this claim, the plaintiffs have become the first in Canada to institute a civil claim for war crimes since a failed attempt by the family of Shidane Arone to bring a civil claim in Ontario courts for Arone’s torture-death at the hands of Canadian peacekeeping soldiers in Somalia (which was dismissed in an unreported judgment).

The defendants, not to be outmatched in creativity, filed in response a series of motions to dismiss, pleading no cause of action, state immunity, lack of standing, forum non conveniens, and even res judicata.

The Judgment

Cullen J. dismissed most of these motions either in whole or in part. Notably, he also accepted, for the first time in Canada, that the commission of a war crime constitutes a civil wrong:

[175] A war crime is an indictable offence. As such, it is an imperative rule of conduct that implicitly circumscribes an elementary norm of prudence, the violation of which constitutes a civil fault pursuant to art. 1457 C.C.Q.

He further accepted that a person may also commit a civil wrong by knowingly participating in a war crime:

[176] In theory, a person would therefore commit a civil fault pursuant to art. 1457 C.C.Q. by knowingly participating in a foreign country in the unlawful transfer by an occupying power of a portion of its own civilian population into the territory it occupies, in violation of an international instrument which the occupying power has ratified. Such a person would thus be knowingly assisting the occupying power in the violation of the latter’s obligations and would also become a party to a war crime, thereby violating an elementary norm of prudence.

However, the good news for the plaintiffs ends there. Despite delivering the not altogether stunning ruling that the commission of a war crime does, indeed, constitute a civil wrong in Canada, Cullen J. nevertheless exercised his discretion under CCQ Article 3135 to decline jurisdiction on the grounds of forum non conveniens.

In some ways this result is unsurprising. The doctrine of forum non conveniens has long been a staunch ally to Canadian corporations beset by human rights claims launched from abroad. However, the plaintiffs here put up a vigorous legal resistance which was innovative and not without appeal.

One of the relevant factors in the forum non conveniens analysis in Quebec, as in common law Canada, is the law governing the dispute. In Quebec, as in the rest of Canada, the law to be applied in a tort action is the lex loci delicti – the law of the place where the tortious act occurred. However, CCQ Article 3081 provides that “[t]he provisions of the law of a foreign country do not apply if their application would be manifestly inconsistent with public order as understood in international relations” (this is roughly analogous to the public policy exception in common law conflict of laws). The plaintiffs argued that the legality of settlements with respect to the Geneva Conventions is not justiciable in Israeli courts. The law as applied by Israeli courts would fail to take account of the Geneva Conventions and, insofar as it would condone the commission of a war crime recognized under both domestic and international law, would be “manifestly inconsistent with public order as understood in international relations.” Accordingly, sending the claim for disposition to Israel would lead to a result that would offend this notion of “public order.”

Furthermore, it is questionable whether Israel can even be considered an available forum, let alone an appropriate one. Insofar as the Israeli courts are effectively unable to hear the action framed as it is in terms of war crimes, it could be said that this claim is not one that is even capable of being tried in Israel. Declining jurisdiction in favour of the Israeli courts would leave the plaintiffs with no viable alternative forum in which to pursue their claim, which would plainly not be in the interests of justice.

Either analysis presents a compelling argument. It would plainly be unjust to send a civil suit for war crimes to the forum whose state is allegedly responsible for those war crimes, particularly where the legality of state action with respect to war crimes is not a justiciable issue. To support their position, the plaintiffs filed the affidavit of Orna Ben-Naftali, a professor of international law whose expertise lies chiefly in the field of international humanitarian law. Prof. Ben-Naftali explained how it is the judicial policy of Israeli courts to decline to review the legality of settlements with respect to international humanitarian law. The defendants, for their part, filed the affidavit of Israeli attorney Renato Jarach, which was substantially in agreement on the fact that Israeli courts would not review the legality of settlements with respect to war crimes, but pointed out that it was not for lack of legal tools to give judgment, but rather because a judicial determination with such broad political aspects should defer to the political process. At trial, counsel for the defendants pleaded respect for the principle of judicial deference to executive action in areas of government policy.

Cullen J. rejected the plaintiff’s argument by rejecting the evidence of Prof. Ben-Naftali – although, as we shall see, not in a way that entirely prefers Mr. Jarach’s evidence either. Embarking on his own interpretations of the Israeli case law, he concluded that it is not for political reasons that Israeli courts refrain from applying international humanitarian law to disputes respecting individual rights, but because the 1949 Geneva Conventions do not form part of domestic statute law in Israel. Furthermore, when the Israeli High Court of Justice was ruling on this question in the 1970s, it did not consider the 1949 Geneva Conventions to be rules of customary international law (which are automatically incorporated into the domestic law of all developed nations). In other words, Israeli courts do not apply the Geneva Conventions simply because they are not incorporated into Israeli law. Noting that “[a] similar requirement exists in Canada, where international instruments require legislative action to form part of Canadian domestic law,” he concluded that this requirement was not “manifestly inconsistent with public order as understood in international relations” within the meaning of CCQ Article 3081. Accordingly, the juridical advantage that the plaintiffs sought is not the advantage of being able to plead the Geneva Conventions, but rather the merely procedural advantage of not having to argue to an Israeli court that the Geneva Conventions have, since the 1970s, become part of customary international law (and therefore part of Israeli law). This minor juridical advantage, he found, is not enough to justify asserting jurisdiction, in light of the other connecting factors which, he concluded, pointed to Israel as the more appropriate forum.

Analysis

With respect, I am unable to agree with the reasoning of Cullen J. For the present purpose, I assert no position as to the legality of Israeli settlements under international law, or the commission of war crimes by Israel, or the state of Israeli law. However, I do agree with the basic reasoning that war crimes, by virtue of their nature, are a special category of higher-order wrongful conduct that would “shock the conscience of all right-thinking people,” and are consequently of deep concern to the global community as a whole. Given the grave and universally condemned nature of the acts alleged—acts which undoubtedly offend “public order as understood in international relations”—I feel that Cullen J.’s reasoning fails to disclose an adequate basis for declining jurisdiction—jurisdiction which the Quebec court, by virtue of the defendants’ domicile, is legally entitled to assert. I call attention, on this point, to the SCC’s citation in Spar Aerospace Ltd. v. American Mobile Satellite Corp., [2002] 4 S.C.R. 205, 2002 SCC 78 of the principle of forum non conveniens that in Quebec, “the plaintiff’s choice of forum should only be declined exceptionally, when the defendant would be exposed to great injustice as a result.”

I have some reservations, first of all, with the manner in which Cullen J. arrives at his determinations on Israeli law. The content of foreign law is not a question of law but a question of fact, which must be proven by expert evidence. A judge cannot simply disregard the pleadings of the parties and interpret the foreign law as he or she sees fit, as would be the case with domestic law (for example, SCC jurisprudence). Yet there is a strong argument to be made that this is exactly what Cullen J. did. The defence expert, Mr. Jarach, did not argue the point that Cullen J. ultimately relied on—namely, that the Geneva Conventions are non-justiciable merely because they are not considered customary international law. By embarking on his own analysis of Israeli case law and substituting his own legal interpretations of the judgments, and thereby arriving at factual conclusions that were not advanced in the testimony of any of the relevant experts, Cullen J. seems to skirt dangerously close to the limits of his judicial authority.

That said, I profess to having no expertise as to the proper interpretation of Israeli law and would not presume to challenge such a conclusion. Assuming, therefore, that Cullen J. properly came to the correct factual determination, and that the Geneva Conventions are indeed non-justiciable in Israel merely because they are not considered customary international law, I still fail to perceive the deductive progression between such a factual determination and the legal conclusions reached by Cullen J.

The plaintiffs’ argument, as I understand it, is that the failure of Israeli courts to apply the Geneva Conventions would in and of itself lead to a result “manifestly inconsistent with public order as understood in international relations,” insofar as it would condone the commission of a war crime. The reason behind the failure to apply such law—be it legal or political—is irrelevant. Rather, the relevant question is whether war crimes—prohibited as they are under international humanitarian and international criminal law and as indictable criminal offences under our own domestic penal law—are themselves acts that are “manifestly inconsistent with public order as understood in international relations.” If the answer is in the affirmative, then sending the claim to an Israeli court would lead to the application of a law that is “manifestly inconsistent with public order as understood in international relations,” regardless of the reasoning behind this law.

For this reason, I believe Cullen J. misses the point entirely by characterizing the question of whether the Fourth Geneva Convention is customary international law as “central to the dispute.” Although I happen to believe there is a very strong case to be made that, notwithstanding the Israel High Court of Justice’s opinion, the relevant norms of the Fourth Geneva Convention are indeed part of customary international law, I am of the opinion that this question is not central, but is, at best, peripherally relevant to the dispute.

I am further unconvinced by Cullen J.’s argument that, since 30 years have passed since the Israeli High Court of Justice pronounced in 1979 that the 1949 Geneva Conventions had not yet become part of customary international law, it is now open for the plaintiffs to argue before an Israeli court that since that time, the Geneva Conventions have indeed crystallized into customary international law. It seems only logical that a domestic plaintiff pleading that the application of a foreign law would lead to an unjust result ought to be entitled to presume that the foreign court will apply the law as it currently stands. It seems unreasonable to require the plaintiff to ask the foreign court to change the law on the strength of abstract speculation, wholly unsupported by evidence, that the foreign court may be receptive to such a change now that the current state of the law is 30 years old.

International Humanitarian Law

There is a further passage in the judgment where Cullen J. issues some remarks on the topic of international humanitarian law that raise interesting questions. After qualifying Prof. Ben-Naftali as an expert in “International Humanitarian Law,” Cullen J. offers the following commentary on her area of expertise:

[248] Professor Ben-Naftali refers to “International Humanitarian Law”. According to Sir Ian Bownlie [sic] the similar expression of “International Human Rights Law” is a convenient but perhaps confusing category of reference devoid of intrinsic substance:

Many lawyers in academic life refer to an entity described as “International Human Rights Law” which is assumed to be a separate body of norms. While this is a convenient category of reference, it is also a source of confusion. Human rights problems occur in specific legal contexts. The issues may arise in domestic law, or within the framework of a standard-setting convention, or within general international law. There is thus the law of a particular State, or the principles of the European Convention on Human Rights, or the relevant principles of general international law. In the real world of practice and procedure, there is no such entity as “International Human Rights Law”.

There is a key difference, however, between “international human rights law” and Prof. Ben-Naftali’s actual words, “international humanitarian law.” International humanitarian law is, of course, the field of law governing the rules of armed conflict between nations. Otherwise known as the laws of war or the law of armed conflict, it is the specific field of law that governs, inter alia, the commission of war crimes. The term “international human rights law” may very well be a “confusing category of reference devoid of intrinsic substance” (more on this contentious point below). International humanitarian law, however, is undoubtedly a well-defined and highly specialized field of law, and moreover the precise field of law that is implicated in this dispute.

It is puzzling why Cullen J. would conflate two decidedly distinct entities in such a manner. With the greatest respect to Cullen J., who for the most part delivered a thoughtful and well-reasoned opinion on a highly complex matter, the most likely reason seems to be that the judge, a specialist in civil and commercial litigation, simply failed to apprehend the distinction between international humanitarian law and international human rights law.

A careful examination of the rest of the decision seems to bear this explanation out. Other public international law concepts discussed in the judgment, such as customary international law, are duly defined and explained, but mysteriously there is no explanation of international humanitarian law anywhere in the judgment, outside of the confusing comparison with international human rights law. In fact, the term first appears placed inside quotation marks, as if the judge questions its universality or value. Nowhere is there any evidence to positively establish an affirmative awareness of the specialized meaning of the term.

Upon consideration, it is not inconceivable how a civil and commercial litigation specialist could develop such an impression. The precise meaning of the term “international humanitarian law” is not evident on the face of the words themselves, and the name does bear a potentially confusing similarity to the term “international human rights law.”

On its face, then, erroneously equating international humanitarian law with international human rights law appears to be merely a minor flaw in the judgment that does not affect the integrity of the decision as a whole. While it must no doubt be of no small consternation to the plaintiffs for the judge to be unaware of the name of the very field of law centrally implicated in this dispute, the judge in ruling on this motion made very little in the way of legal determinations concretely engaging international humanitarian law.

On closer consideration, however, this seemingly benign mistake does raise concerns that are serious enough to compromise the broader integrity of the decision. It raises an apprehension that every time the phrase arose in oral argument, in written submissions, or in relevant treatises that were consulted during the course of deliberations, there is a chance that the precise message may have been lost on the judge.

More significant, however, are this error’s implications on the judge’s assessment of the credibility of Prof. Ben-Naftali. An examination of the context of the passage quoted above makes it clear that Cullen J.’s purpose is to weaken Prof. Ben-Naftali’s credibility as a reliable expert and the weight of her evidence by erroneously finding that her testimony is plagued with terms that are “confusing” and “devoid of intrinsic substance.”

Further, as mentioned above, Cullen J. explicitly qualified Prof. Ben-Naftali as an expert in international humanitarian law. Accordingly, he deemed her to be an expert in a “confusing category of reference devoid of intrinsic substance,” of which “there is no such entity”—essentially, not much of a real expert in anything at all. Under this mistaken impression, he would then have assigned to her evidence a corresponding degree of weight.

It is unclear what conclusion Cullen J. may have reached with respect to the expert evidence before him had he been properly cognizant of the fact that, actually, Prof. Ben-Naftali was an expert in precisely the highly specialized and concretely defined field of international law that is squarely implicated in the dispute. Had he not mischaracterized her expertise, he may not have been so quick to substitute his own interpretation of Israeli law for hers. Whatever the case, it is clear that Cullen J.’s accidental conflation of international humanitarian law and international human rights law may have given rise to broader misconceptions that could have affected the final outcome.

International Law in Domestic Courts

The passage quoted above is not the only place where Cullen J.’s relative inexperience with respect to public international law is exposed. Later in the judgment, Cullen J. makes reference to “Israel’s absolute immunity to any judicial proceedings [in Canada]” [Emphasis added].

The term “absolute immunity” ordinarily refers to the conception of state immunity that confers on a state complete and total immunity, with no exception, from the jurisdiction of the domestic courts of another state. The doctrine of absolute immunity has been essentially defunct, at least in Canada, since at least 1982 when the federal government enacted the State Immunity Act, R.S.C. 1985, c. S-18, which codified the developing common law theory of restrictive immunity. In contrast to absolute immunity, the latter theory allows a number of exceptions to state immunity; for example, exceptions relating to commercial or criminal activity.

It is thus incorrect, and has been for some time now, to speak of Israel or any foreign state as enjoying “absolute immunity” in Canada. One expects that a judge with a stronger background in public international law would have avoided such wording, conflicting as it does with an established term of art—although given the many exceptions contained in the State Immunity Act, it is difficult to see how it could be said that Israel enjoys “absolute immunity” in either the doctrinal or the literal sense.

Further, Cullen J.’s dismissal of the term “international human rights law,” and his assumption that a sub-field of international law characterized by common subject-matter is “devoid of intrinsic substance” simply because it admits of many different sources, fundamentally misapprehends what is almost by necessary implication an intrinsic characteristic of many fields of international law. On this reasoning, there cannot be any sub-field of international law, whether “international human rights law,” “international environmental law,” “private international law,” “international trade law,” and so on.

If I were an international lawyer, I might point to these mistakes as a reflection of the generally ambivalent attitude towards public international law within the Canadian legal profession. To be sure, Canadian courts have also come out with some expertly written decisions on both state immunity and international humanitarian law. However, there are also many decisions such as Cullen J.’s where it is apparent that the judge is grappling with new and unfamiliar issues, often with unfortunate results. These kinds of issues will only arise more frequently in the future, as increasing international economic integration continues to produce more transnational litigation.

Conclusion

The plaintiffs have not yet filed an appeal, although one is expected. If Bil’in does find its way before the Court of Appeal, however, the plaintiffs certainly have a strong case to have the trial judge’s decision overturned. For the reasons outlined above, I am not convinced that Cullen J. properly identified and assessed the relevant considerations in his forum non conveniens analysis. He failed to properly assess the plaintiffs’ argument with respect to the non-justiciability of the legality of settlements under international humanitarian law in Israeli courts, and anchored his finding in an irrelevant consideration, i.e. the question of whether the reasoning behind this policy is legal or political. Further, he seriously mischaracterized Prof. Ben-Naftali’s expert evidence and qualifications and called her credibility into question on a faulty basis.

Ultimately, however, perhaps my strongest objection to this decision is what can only be characterized as its fundamental failure to give due consideration to the gravity of that special class of human rights abuses known as war crimes. Sending a civil claim for war crimes, over which the domestic courts lawfully have jurisdiction, to the courts of the same country alleged to have committed them is a proposition that ought to be suspect on its face, and to which domestic courts ought to accede only with extreme caution. Under no circumstances, in particular, should such jurisdiction be declined where, as the trial judge admitted here, war crimes are not justiciable in the courts of that country. This would lead to the grossly unjust result of leaving the plaintiff absolutely no forum in which to pursue the claim. Cullen J.’s claim that the refusal to adjudicate the commission of war crimes due not to their politically sensitive nature but because they are not customary international law essentially reduces international prohibitions against war crimes to the same status as any common treaty between nations: of no legal force in domestic courts until it is incorporated into domestic law by legislative enactment. It is a finding inconsistent with an awareness that war crimes are grave offences, not simply by virtue of their status as international law, but because they are in and of themselves serious and universally condemned violations of human rights, elevated to such exceptional status by broad international consensus—a consensus endorsed in Canada through such legislative enactments as the Geneva Conventions Act and the Crimes Against Humanity and War Crimes Act.

Cullen J. does not so much as acknowledge the difficulty this fact poses for his ultimate finding in his discussion of the “interests of justice” factor in forum non conveniens. Instead, he demurs to such factors as the plaintiffs’ failure to join any current owners or occupiers of the settlements (as if the issue concerned a mundane property dispute and not a war crime) and, incredibly enough, the need to conserve judicial resources. The non-justiciability of war crimes in Israel, meanwhile, is dismissed as akin to any mere difference between the laws of Israel and the laws of Quebec. Throughout the discussion, he seems blithely unaware of any reason why one might consider the non-justiciability of war crimes normatively problematic beyond the mere fact of simple divergence with the law of Quebec. Even on its most generous interpretation, such reasoning demonstrates nothing short of a complete failure to apprehend the exceptional character of the matters at stake in this litigation.

Such a ruling ought to trouble any observer, regardless of where on the spectrum he or she may fall with respect to the broader political context of this dispute. The issue at stake here is whether a civil claim for war crimes against a Canadian corporation can be heard in Canada, and not (at this stage) whether such war crimes were actually committed. The narrow and restrictive approach that Cullen J. took to the plaintiff’s arguments on justiciability and the failure to give effect to the exceptional level of censure that the international community has chosen to attach to war crimes could set a dangerous precedent that any observer measurably disturbed by the commission of war crimes in any form would be quick to condemn.

As authorities such as Binnie J. have noted, “[t]he enforcement mechanisms for human rights have lagged… [Y]ou cannot have a functioning global economy with a dysfunctional global legal system: there has to be somewhere, somehow, that people who feel that their rights have been trampled on can attempt redress.” In order to facilitate the introduction of such enforcement mechanisms, Canadian courts must act to significantly curb their current proclivity towards the liberal application of the forum non conveniens doctrine in such cases. Especially since the 1999 forum non conveniens stay in the Cambior case in Quebec (alongside a costs order against a Quebec NGO bringing a claim on behalf of Guyanese citizens that alleged health and other harms from a cyanide spill by a subsidiary of a Canadian gold mining company), Canadian courts have attracted—and often affirmed—a reputation as weak and ineffective when it comes to transnational corporate accountability. For example, when Sudanese citizens sought to sue Canadian company Talisman Energy, they went to US courts, arguing that the receptivity of Canadian courts to allowing a claim against a Canadian company was at best unclear, notwithstanding the fact that it was palpably clear Sudanese courts offered no viable alternative.

As it stands, the Bil’in judgment is a setback in the fight against war crimes, crimes against humanity, and human rights violations everywhere. If the reasoning stands, Canadian corporations will continue to successfully take shelter behind forum non conveniens regardless of the gravity of the allegations against them or the capacity of the foreign court to adjudicate the claim.

The author attended the hearing of Bil’in (Village Council) v. Green Park International Ltd. in Montreal in June with the assistance of the Nathanson Centre on Transnational Human Rights, Crime and Security. He has also provided legal research support and feedback to counsel for the plaintiffs.