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MEDIA RELEASE: Prosecution of George W. Bush for Torture

Wednesday 19 October 2005

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World Exclusive


October 19, 2005

Prosecution of George W. Bush for Torture at Abu Ghraib and Guantánamo Bay Prisons

Notification of Canadian Officials

Lawyers against the War (L.A.W.) learned Nov 17, 2004 that George W. Bush was coming to Canada on Nov 30, 2004. During this period L.A.W. wrote to various governmental ministers advising of them that George W. Bush stood accused of the most grave crimes known to law, including torture, and therefore should be denied entry to Canada. L.A.W. notified the Prime Minister, the Immigration Minister and the Attorney General of Canada that these accusations were made by credible and knowledgeable groups and individuals throughout the world.

L.A.W. advised the Ministers that GW Bush’s responsibility derives from his direct involvement in the formulation of policy as both the President as well as the Commander in Chief of U.S. Armed Forces. They were informed that GW Bush had failed to prevent the commission of and once discovered, then failed to stop these Crimes Against Humanity through willful blindness or by deliberate policy.

L.A.W. received no reply to any of these letters and George W. Bush entered Canada on November 30th 2004.

Filing the Charges


Is the testimony of an individual to the courts that an offence has been committed.

When an information is laid by a private person, the Justice of the Peace, must refer to information to a judge for a hearing to determine whether to compel the appearance of the accused.

The appearance of the accused would be compelled by an arrest warrant or a notice to appear if the information is supported by ‘reasonable grounds’.

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

On Nov 30, 2004, Gail Davidson, co-chair of L.A.W. filed an information charging GW Bush of aiding, abetting and counselling the commission of torture at Abu Ghraib and Guantánamo Bay prisons.

The information was accepted and filed in the Provincial Court of British Columbia, Vancouver, B.C. under court file number 128960-1. Because the Justice of the Peace failed to refer to information to a judge for a process hearing, Davidson attended at the Courthouse on December 2nd to request a court date and was advised to attend in court on December 6th at which time a date for the trial would be set.

Lower Court


An act or proceeding in a cause which the opposite party can treat as though it had not taken place, or which has absolutely no legal force or effect. - Black’s Law Dictionary, 4th Ed.

On Dec 6th the Crown Prosecutor advised the judge that..

"we will not be simply fixing a date...The Crown is making an application that this information [charging Bush with torture] is a nullity."

On the request of counsel for the Attorney General of B.C., Judge Kitchen ordered the public and the press from the courtroom over the objections of Charlie Smith, then news editor of the Georgia Straight newspaper, and then locked and ‘sealed’ the courtroom.

Judge Kitchen proceeded to hear the Crown’s application and dismissed the information as a nullity on the basis that,

"...Mr. Bush is President of the United States, which I concluded is alleging that he is the head of state of the United States, and as such he does have immunity from prosecution under the criminal laws of Canada." (Transcript page 21 ll. 9-12)


" far as the jurisdiction under the Criminal Code, I conclude that the concept of diplomatic immunity still applies." (Transcript page 21 ll. 21-23)

The judge then allows publication of his decision, while banning publication of the proceedings, transcript as well as all exhibits or documents. WHAT .. DOES THIS MEAN ?

Davidson and L.A.W. filed an application for review of Judge Kitchen’s decisions in the Supreme Court of British Columbia.

(Gail Davidson and Lawyers against the War v. Attorney General of British Columbia, Supreme Court of British Columbia, Vancouver Registry No. 23447.)

Publication Ban Issue

On Aug 25, 2005, an appeal was heard by Justice Dohm on the legality of the orders banning publication and sealing the courtroom. In this proceeding the British Columbia Civil Liberties Association (BCCLA) was granted intervener status. The Attorney General of British Columbia requested a continuation of the interim ban on publication of the trial until the issue was decided for good.

Without hearing submissions from either Davidson or the BCCLA, the judge made an interim order banning any "publication and disclosure of the name, office or anything tending to identity the proposed defendant in this proceedings and the nature of any proposed charges".

On Sept 29, the publication ban issue was before Justice Satanove, who directed counsel for the Attorney General of B.C. to provide written submissions by Oct 14, as to why a publication ban was required and to notify the media.

Counsel for the Attorney General of B.C. neither filed written submissions nor gave notice to the media and on October 17, 2005, withdrew the application for a continuing publication ban and consented to orders;

o terminating the interim publication ban made by Mr. Justice Dohm August 25th 2005, and

o terminating and setting aside the publication ban issued by Judge Kitchen of the Provincial Court of British Columbia on December 6th 2004.

Supreme Court


An issue which cannot be settled by judicial decisions

- Black’s Law Dictionary

The issue of whether or not diplomatic immunity provides a head of state with absolute immunity from prosecution is a point that has never been argued before a Canadian court.

The Crown is now objecting that the Supreme Court does not have the ability to review the decision of Judge Kitchen because the issues are moot. The Crown seems to indicate that their mootness argument is based on the fact that the Attorney General of Canada has failed to consent to the prosecution of George Bush.

Section 7(7) of the Criminal Code of Canada states that the prosecution cannot continue without the consent of the Attorney General of Canada within eight days of filing. The time for the Attorney General’s consent stopped when Judge Kitchen declared the information a nullity.

LAW is confident that the Attorney General will consent to the prosecution after reviewing the evidence upon which the charges are based.

Moot Hearings

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

It seems unlikely that the Attorney General’s application to have the Application dismissed on the basis on mootness will succeed. The Supreme Court of Canada has established a two-fold test for mootness:

1. Is there a live controversy and is there an adversarial context? If the answer to this question is no, the court then goes on to consider...

2. Does the case raise an issue of public importance that it is in the public interest for the court to decide?

If the answer to either of these questions is yes the court will hear and decide on the matter (even if the controversy between the parties has been terminated).

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

Outstanding Issues:

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

1. Judge Kitchen’s failure to require the Attorney General of B.C. to give notice of their intent to have the information declared a nullity

2. Judge Kitchen’s failure to hold a fair hearing on the "diplomatic immunity from prosecution" of heads of state

3. Whether "diplomatic immunity" prevents prosecution of Crimes Against Humanity in Canadian courts

4. Whether constitutional "equality before the law" or legal "diplomatic immunity" is paramount


Constitution Act 1982

15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The Timeline:


Nov 17 Learned that George W. Bush was coming to Canada on Nov 30, 2004.

Nov 17-30 Notified Ministers of crimes of GW Bush

Nov 30 GW Bush arrives Canada

Nov 30 Information filed in Vancouver BC

Dec 2 Request made for judicial process hearing (setting a date for the hearing)

Dec 6 Crown requests that:

The scheduled process hearing be transformed into full trial;

Public be expelled from the courtroom;

The charges be declared a "nullity" by the judge;

Judge acquiesces to all of the Crown requests

Judge finds the Information a nullity, stating that:

"Mr. Bush is President of the United States, which I concluded is alleging that he is the head of state of the United States, and as such he does have immunity from prosecution under the criminal laws of Canada";

Judge allows publication of the decision;

Judge bans publication of all related materials;


Jan Appeal to Supreme Court of British Columbia of "nullity" decision

Aug 25 Judge refuses to hear arguments of either LAW or BCCLA

Judge extends publication ban as requested by the Crown of

"anything tending to identity the proposed defendant in this proceedings and the nature of any proposed charges"

Sept 29 Judge orders Crown to provide reasons for publication ban

Oct 17 Crown withdraws request for media ban

Judge terminates all publication bans


Oct 28 Mootness written submission deadline

Nov 25 Mootness trial - 10 a.m. - B.C. Supreme Court, 800 Smithe Street, Vancouver, British Columbia, Canada.

— -
Please direct your enquiries to:

Gail Davidson at:

Lawyers Against the War
Tel: +1 604 738-0338
Fax: +1 604 736-1175


Editor’s comment:

I have been lead to understand that if this action is declared moot by the court it can then be taken before the International Criminal Court (as laid out in Canadian law). It is worth noting that the investigative powers of the ICC are arguably greater than Canadian government powers.

I request you forward this to your media contacts immediately.


October 17, 2005 media release:

Best regards,




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