Bush publication ban lifted

By matthew burrows

Publish Date: 20-Oct-2005

A Vancouver lawyer has won a procedural victory in her attempt to prosecute U.S. President George W. Bush under the Criminal Code.

Gail Davidson, cofounder of an international group of jurists called Lawyers Against the War, expressed her delight on October 18 following the lifting of a publication ban on court proceedings against the U.S. president.

“It’s great news, but really they had no choice,” Davidson told the Georgia Straight.

The Kitsilano lawyer got the ball rolling against Bush as soon as he set foot on Canadian soil for his November 30, 2004, visit. As a private citizen, she charged him with seven counts of counselling, aiding, and abetting torture at Abu Ghraib prison in Iraq and at Cuba’s Guantanamo Bay naval base. She had her charges accepted by a justice of the peace in Vancouver Provincial Court.

Bush faces prison time if the case goes to trial and he is found guilty.

On December 6, 2004, Davidson was at Provincial Court to fix a date for the process hearing. However, Provincial Court Judge William Kitchen promptly ordered a Straight reporter and other observers from the courtroom and cancelled the charges, declaring them a “nullity”. The meeting was deemed to be “in-camera” and Kitchen concluded immediately that Bush had diplomatic immunity during his two-day visit to Canada because he was a head of state.

Davidson subsequently appealed Kitchen’s decision and B.C. Supreme Court Justice Deborah Satanove directed the Crown to produce submissions on the publication bans by October 14. The Crown consented to the termination of Judge Kitchen’s Provincial Court ban and an interim ban made by B.C. Supreme Court Justice Patrick Dohm.

“We are next in [B.C. Supreme] court at 10 a.m. on November 25 for the Crown to argue that the case is moot and that the court not hear any argument on the substantive issue as to whether George Bush is protected from prosecution under the laws of Canada by what Judge Kitchen called a ‘concept of diplomatic immunity,’?” Davidson wrote in an October 18 e-mail to the Straight.

In an earlier interview with the Straight, Davidson said “nullity” means the charges never legally existed, even though they were approved by a justice of the peace on November 30, 2004. Crown counsel spokesperson Stan Lowe told the Straight that the upcoming November 25 court proceedings-he erroneously referred to the case as “Regina versus Bush”-will focus on two issues.

“First of all, the court has to determine whether it has jurisdiction in the Supreme Court to hear the matter,” Lowe said. “It’s a review, an application by Gail Davidson arising out of a Provincial Court decision. Secondly, part of the issue is whether they [LAW] can proceed in their application without the permission of the Attorney General of Canada.”

Canadian Attorney General Irwin Cotler must give his consent within eight days of laying charges for the case to continue. The Crown is now raising a preliminary objection that B.C. Supreme Court does not have jurisdiction to adjudicate on Davidson’s appeal because the issues raised are no longer moot. “It’s great,” Davidson said. “Now the Crown’s argument is moving from mute to moot.”

As a result of the lifting of the publication ban, the Straight has obtained a copy of the Provincial Court transcript from December 6, 2004. It sheds new light on some of the finer details of why Davidson and LAW laid the charges.

“It’s not a frivolously filed application,” Davidson said last year in court. “The application was filed on the 30th [of November] because Mr. Bush was in Canada, thereby giving Canada the jurisdiction to prosecute under 269(1) [of the Criminal Code of Canada], the torture section.”

Deputy regional Crown counsel Marion Paruk stated the Bush couldn’t be charged because he is a head of state: “This immunity flows from both the common law, international common law, Canadian common law, as well as by Canadian statute.”

In her response-outlining why immunity does not apply to Bush-Davidson was hurried up by Kitchen.

“I can give you a few minutes, not too many. It seems to be a slam dunk to me...I’m not going to get into a long argument about it. It seems to be trite criminal law...”

Davidson pointed out that Canada signed the 1987 Convention Against Torture. As a result, she said, “amendments to the Criminal Code were made to allow Canada to expand its jurisdiction to prosecute crimes of torture.”

Addressing directly the Crown’s question of immunity, Davidson referred to the Rome Statute, defining torture as a war crime and barring immunity for torture and other war crimes.

“Well, I’m afraid I don’t agree with you,” Kitchen said.

http://www.straight.com/content.cfm?id=13646