After a full day's hearing on November 25th 2005 Mme. Justice Deborah Satanove of the British Columbia Supreme Court reserved judgment on another government bid to stop Canadian proceedings against George W. Bush for torture.
Torture charges laid against Bush on November 30th 2004 by LAW were dismissed by a provincial court judge who ruled that Bush as U.S. President, was immune from prosecution under the criminal laws of Canada and the charges were a nullity. The Attorney General of Canada had not yet consented to prosecution when the charges were dismissed as a nullity on December 6th 2004.
Lawyers Against the War--LAW appealed that decision on the ground that in Canada, sitting heads of state are not absolutely immune from prosecution for torture.
On November 25th 2005, the Attorney General of British Columbia made an application to have LAW’s appeal dismissed on two grounds: the B.C. courts do not have jurisdiction to hear the case and the Attorney General of Canada has not yet consented to the prosecution.
The Crown says the Attorney General of Canada must consent to the prosecution within 8 days of the charges being laid: LAW says the Attorney General’s consent must be within 8 days of the process hearing and after a proper review of the evidence. The Crown also asserts that the charges ought to have been laid in Ontario: LAW says the charges can be laid anywhere in Canada.
LAW says that the court must decide whether, within all the circumstances, Mr. Bush is immune under Canadian law. LAW also says that the Attorney General of Canada cannot consent to the prosecution unless and until the provincial court decision is set aside.
LAW questions what reason there could be in law for either the Provincial Crown or the Attorney General of Canada to refuse to pursue charges in a case where the evidence of torture, committed against non-Americans and outside U.S. territory, is overwhelming; where the alleged offender is attempting to legalize torture and where the laws of Canada provide jurisdiction to prosecute. LAW says the purpose of Canada’s torture laws is to eradicate all torture irrespective of where it occurs, the office of the alleged offender(s) and/or the nationality of the victim(s).
No date was set for the decision.
On November 30th 2004 LAW co-chair filed an information in the Provincial Court of B.C. charging George Walker Bush, as President of the United States and Commander in Chief of the U.S. Armed Forces with 7 counts of aiding, abetting and counseling torture at Abu Ghraib and Guantánamo Bay prisons. The charges are based on overwhelming and horrific evidence of torture resulting in injury and death and were laid under Criminal Code provisions enacted when Canada ratified the UN Convention against Torture. After an information is filed by a private person, the court must conduct a process hearing to determine if there is enough evidence to support the charges and the Attorney General of Canada is entitled to attend this hearing. The Criminal Code imposes on the Attorney General of Canada the responsibility to oversee torture prosecutions of non-citizens which can continue to the trial stage only with his consent.
On December 6th 2004, before a process hearing was held to review the evidence and before the Attorney General of Canada had consented, a provincial court judge dismissed the information as a nullity on the basis that George W. Bush, as President of the United States is immune from prosecution for torture under the criminal laws of Canada.
LAW wants the court to hear the central issue in the appeal; whether, under Canadian law, George W. Bush is immune from prosecution for the torture alleged because he is President of the U.S., and if so the extent and effect of such immunity. No Canadian court has ever had the opportunity of properly adjudicating these issues, critical to the enforcement of the right to freedom from torture, as well as to the enforcement of laws prohibiting war crimes and crimes against humanity.
LAW is an international group of jurists and others based in Canada with members in 14 countries.
Michael Mandel, Professor, Osgoode Hall Law School, York University, 4700 Keele Street, Toronto, Ontario, M3J 1P3. Tel: 416 736-5039, Fax: 416-736-5736, Email: MMandel@osgoode.yorku.ca
Gail Davidson, Tel: 604 738 0338; Fax: 604 736 1175, Email: firstname.lastname@example.org
Posted December 1, 2005
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