Monday, August 17, 2009

Lawyers challenging the Harper government

Justice Minister Rob Nicholson has been attending the Canadian Bar Association ("CBA") conference in Dublin this weekend. Ah, Dublin in August, Nicholson probably thought to himself. What a great way to combine his role as Justice Minister with a bon little voyage? Well, not so fast. Nicholson's been in the front row for a couple of key rebukes to the government. Talk about a slap in the face. But well deserved.

On Saturday, the CBA appropriately called for the Harper government to respect the Federal Court of Appeal's judgment and seek the repatriation of Omar Khadr from Guantanamo Bay:
Prime Minister Stephen Harper’s government will tarnish Canada’s global image if it doesn’t accept the latest court ruling ordering Ottawa to repatriate a Canadian-born terrorist suspect held in a U.S. military prison, the Canadian Bar Association said Saturday.
“It’s quite simple: He’s a Canadian citizen that has been incarcerated in another country, who has been denied basic procedural rights that any other Canadian would enjoy in this country,” Joubert said.

Khadr should be brought “back home to face justice here, to let our courts deal with his case.”
On Sunday, it was on to another appalling legal development ushered in under Nicholson, the Harper government's abhorrent death penalty policy for Canadians abroad: "Bar association slams Harper over death penalty." As we know, the Harper government has reversed Canada's decades of opposition to the death penalty abroad. Historically, Canada has sought clemency for its citizens overseas. No more. The Federal Court rebuked the government once for its new and arbitrary "picking and choosing" policy (Smith case) yet the Harper folk, in their eminent wisdom, decided that the solution was to plow on in pursing their arbitrary policy. Canada now has a "pick and choose" policy where the federal government will decide which Canadians it will stand up for abroad. The problems with this approach are obvious and the CBA cited a few on Sunday.
The Harper government’s pick-and-choose approach to seeking clemency for Canadians facing the death penalty overseas brings the country’s legal system into disrepute and could backfire, the Canadian Bar Association declared Sunday.

The association representing 37,000 members of the legal profession also said the policy won’t be viewed as principled, will inevitably be applied inconsistently and clashes with Canada’s own abolition of the death penalty in 1976.

The federal government published its policy approach last month, saying it will seek clemency based on circumstances such as the nature of the crime and whether the host country is democratic and respects the rule of law.

"The case-by-case approach invites arbitrary and discriminatory decisions, implying that the death penalty may be appropriate for some Canadians," stated a resolution passed unanimously Sunday at the bar association’s annual meeting, which was held in Dublin. (emphasis added)
The CBA also pointed out the boneheaded diplomatic fallout likely to occur as a result of this policy. Namely that if Canada does seek clemency for one of its citizens, then the particular nation in question gets the message that they have a sub-par legal system. Way to smooth those diplomatic channels, guys.

And then there's the problem with the inherent element of choice in the Harper government's new policy. Namely, the very fact that Canada will decide whether to intervene in a case abroad leaves the policy ripe for abuse. If the government were to be lobbied particularly hard by a group they may feel political pressure to act and do so. Which in turn would discredit us, make us seem more like a banana republic, not the maturely governed nation that we supposedly are.

A weekend of rebukes from a respected national professional organization. Another canary in the coal mine for us on the Harper government. Way to make it a memorable trip for the Minister, CBA.