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- - IN THIS ISSUE - - -
CASE LAW REVIEW:
R. v. Blom, Ontario Court of Appeal, August 21, 2002.
ARTICLES:
Tom Malinowski, Bush's Court Crusade, The Washington Post, August 16, 2002.
Tracey Tyler, Legal aid strike causing chaos, The Toronto Star, August 18, 2002.
When violating rights becomes the routine, The Globe and Mail, August 19, 2002.
Adam Liptak, Citing Money Concerns, Judge Rejects Death Penalty, The New York Times, August 18, 2002.
Kirk Makin, Antiterrorism action weak, ineffective, lawyers hear, The Globe and Mail, August 13, 2002.
Chris McGreal, Woman faces death by stoning ‘after weaning’, The Guardian, August 20, 2002.
Susie Steiner, Sharia Law, The Guardian Unlimited – Internet Edition, August 20, 2002.
* * * * *
Case Law Review:
R. v. Blom, Ontario Court of Appeal, August 21, 2002
This decision from the Ontario Court of Appeal, delivered by Justice of Appeal Shape, concerns an appeal from judgment dismissing a summary conviction appeal.
The appellant was charged with impaired driving and ‘over 80’ drinking and driving offence. He gave notice of a Charter application to challenge the admissibility of a statement he made at the scene of the accident. The Charter Notice was skeletal and mentioned only 10(b) issues. The trial judge ruled that the Notice was insufficient to allow the appellant to argue that his s.7 rights would be violated if the statement were admitted. The statement was admitted and the appellant was convicted. The appellant submitted to the Court of Appeal that the trial judge erred in precluding him from advancing this Charter argument and that the summary conviction appeal judge erred in dismissing his appeal.
Background:
A civilian witness encountered the appellant near the scene of a one-car accident in a rural area. This witness lived nearby and had been awoken by a bang. He had a brief discussion with the appellant who was standing in the roadway near the vehicle. The appellant stated that no one else was in the car, that the car was tow or three months old, and that a tire had blown. The witness observed no sings of impairment. The witness called the police and a uniformed officer arrived on the scene approx 15 minutes later.
When approached by the officer and asked if he was the driver the appellant said he was the driver. The officer then asked for his driver’s licence and the appellant complied. The officer observed what he believed to be signs of impairment and arrested the appellant advising him of his right to counsel. The appellant was taken to the station where he asked to speak to counsel. After consulting with counsel he made no further statement but did give a breath sample. He blew .160.
The appellant gave notice of his intention to bring a Charter challenge to the admissibility of certain evidence. The Notice is reproduced at paragraph 6 of the judgment. The grounds cited in the Notice are (1) That the Applicant’s right to retain and instruct counsel as provided by s.10(b) of the Charter were infringed and/or denied and (2) Such further and other grounds as counsel may advice and this Honourable Court may permit.
The Crown filed a response objecting to the sufficient of the Notice based on the failure to state grounds to be argued and to provide the documentary, affidavit or other evidence to be sued in support of the application.
At the opening of the trial the Crown indicated that a voir dire was required to determine the admissibility of the appellant’s statement but elected to call the evidence of the police officer and civilian witness first. When the police officer got to the point where he was about to give evidence about the appellant’s statement at the scene, the voir dire was held. It was at this point that Crown counsel objected. He indicated this appeared to be a combined voir dire dealing with both voluntariness and admissibility under the Charter and argued the appellant had failed to give adequate notice to raise the Charter point.
The Crown submitted that that the Notice did not comply with the Rules of the Ontario Court of Justice In Criminal Proceedings (Rules) 30.03(c) and 30.05. The Crown pointed to the appellant’s failure to file and affidavit and his reliance on s. 7 despite the omission of any reference to it in the Notice. Crown counsel also argued that he was prejudiced because he did not have adequate time to prepare a legal argument in response.
The appellant explained that the s.7 argument was based on a decision of which he was unaware when he prepared the Notice. He further argued that an affidavit was unnecessary as the application was to be considered in the context of the trial and that it was evidence from the Crown disclosure that it rested upon the encounter between the officer and the appellant. Finally, he submitted that if the Notice was to be found deficient this procedural irregularity should not defeat the rights of an accused. As such, the appropriate remedy would be to grant the Crown an adjournment.
The trial judge ruled that the Notice was deficient and that the appellant was precluded from advancing his s. 7 argument and further that an affidavit was required to meet the requirements of the Rules and to complete the record and allow the Crown to respond. The summary conviction appeal judge observed that he may not have reached the same conclusion as the trial judge but held he could not interfere with the trial judge’s exercise of discretion.
Analysis:
Justice Sharpe begins the analysis with an overview of the purpose of this particular procedural rule:
Rule 30, requiring notice of Charter applications to exclude evidence, is a procedural rule. Its purpose is to facilitate the fair and expeditious determination of Charter issues by ensuring that neither party is taken by surprise at trial and that both parties have adequate notice of the factual and legal basis for the Charter application (para 21).
And goes on to note that “procedural rules are important, but they are not to be rigidly applied without regard to their underlying purpose … non-compliance is not necessarily fatal”. (para 21-22).
As such, the test for the trial judge is whether the failure of adequate notice put the opposite party at some unfair disadvantage in meeting the case that is presented. If there is no real prejudice, inadequate notice should not prevent consideration of the Charter application. The preferred course is for a trial judge consider a less drastic remedy that can nonetheless alleviate that prejudice. If one is available it should be followed before an order refusing to entertain the Charter application is made (para 23).
Turning to the facts of the case before the Court, Sharpe J.A. noted that adequacy of the appellant’s Notice should be considered in light of the charges the appellant faced and the nature of the argument he sought to advance. The Court observed that “this was a routine prosecution for a routine offence” (para 25) and that the Charter argument was not factually complex. Nor was the argument novel from a legal perspective and as such it did not require extensive legal research. Justice Sharpe noted that the appellant’s argument rested squarely on the application of a recent decision of the SCC that would be familiar to a prosecutor appearing before a court dealing with drinking and driving offences.
Having considered the nature of the charges and the argument the Court of Appeal determined that the defective Notice did not cause any prejudice to the Crown. The Court notes that the Crown would not have called any additional evidence on the Charter point and further that there was no suggestion that the Crown would have conducted the examination of witnesses any differently and the Notice been more complete. Again, the Sharpe J.A. emphasised that the legal issues were routine and as such it could be reasonably be expected that Crown counsel could address them without extensive preparation. At best, the Court concluded, the Crown may have required a brief adjournment to review the SCC decision. Consequently the Court ruled, at paragraph 28, that the trial judge erred in principle by foreclosing the appellant’s Charter application and that the summary conviction appeal judge also erred in his analysis of this issue.
Ultimately the appeal was allowed and the conviction was set aside. The Court held that it would not decide the Charter issue on the record before it. The Court also rejected the respondent’s submission that the Court should apply the s/ 686(1)(b)(iii) provisio and dismiss the appeal. The Court agreed that without the appellant’s admission that he was the driver, there was evidence from which a trier of fact could infer guilt but also agreed with the appellant’s submission that this was not the only available inference and accordingly a new trial was ordered.
* * * *
The
following article appeared in The Washington Post, dated August 16, 2002.
Bush's Court Crusade
By Tom Malinowski
Writing in Foreign Affairs magazine at the start of the 2000
Presidential campaign, George Bush's future national security adviser,
Condoleezza Rice, promised a "disciplined and consistent foreign policy
that separates the important from the trivial." It is becoming hard to
square that commitment with the Bush administration's strange and single-minded
crusade against the International Criminal Court.
Supporters and critics of the ICC ought to agree on one thing: The fate of the world is not at stake in the debate over this institution. Yet the administration's obsession with the remote possibility of the ICC's pursuing an American has begun to trump its pursuit of virtually every other important national interest.
In July the administration promised to shut down every United Nations peacekeeping mission in the world if the U.N. Security Council didn't grant American peacekeepers permanent immunity from the ICC. The total number of American military personnel serving today as U.N. peacekeepers is -- hold your breath -- one. (Several dozen Americans also serve the United Nations as military observers and several hundred as police monitors, but all are unarmed and therefore hardly likely to be accused of war crimes).
Yet for this the administration was willing to risk operations vital to peace and stability from Lebanon to Cyprus to Bosnia. For this it was willing to create a crisis in the NATO alliance, which met last month to consider, for the first time in its history, the possibility of an American withdrawal from a military engagement in Europe.
Enlarging NATO has been a top administration priority. But now it is telling aspiring allies such as Romania and Estonia that their NATO membership may be at risk unless they promise not to cooperate with ICC investigations of Americans. Last week, the State Department told dozens of foreign diplomats that unless their countries make a similar pledge, they may lose U.S. military assistance. Major European and Asian allies are exempt from this threat; most poor countries in the developing world are not.
Under the ICC Treaty, the United States is entitled to seek so-called Article 98 agreements that would prevent third countries from surrendering American suspects. But many countries that support the ICC will be reluctant to grant such agreements to a country so intent on undermining the court. Now they may be forced to choose between their commitment to the rule of law and their relationships with the United States.
The last time I checked, the United States was pressing countries for military cooperation against terrorists who committed a crime against humanity. Now it is threatening to end military cooperation with many of the same countries if they try to meet their obligations to the ICC, which is also meant to bring terrible criminals to justice.
The administration might also have considered that virtually every member of the ICC is a democracy. (Dictatorships such as China, Cuba and Sudan have not applied for fear of exposing themselves to the court's jurisdiction). This means that the threat to cut military assistance is also targeted primarily at democracies.
As the State Department warned on Wednesday, it could risk U.S. relations with Colombia, which joined the ICC to pressure the rebels and paramilitaries terrorizing its people. It could deny aid to Mali, a young African democracy that joined in hopes of deterring potential coup plotters. Meanwhile, military aid to such repressive countries as Egypt, Uzbekistan and Saudi Arabia, which are not members of the ICC, wouldn't be jeopardized at all.
This may be the only sanction in American diplomatic history aimed almost exclusively at governments that share American values -- the ultimate dumb sanction. Countries may avoid it by giving in to the administration's demands. But even then some of America's closest friends will feel mugged, and America will reap far more resentment than reward.
Of course, the administration will argue that this is necessary to protect Americans from a rogue international court. But even if the ICC does go badly wrong, the most powerful nation in the history of the world surely will have the resources to defend itself against 18 judges in Holland who will have no army, police or independent enforcement power. The unlikely possibility that someday, somewhere, some American might be investigated by this court is no reason to threaten allies in the middle of a war, or to sanction fragile democracies whose success is important to America.
Privately, many administration officials see this. But they seem trapped by their anti-ICC rhetoric, unable to end a reckless quest that has done more to hurt America than it could ever do to undermine this court. Those who share the president's original, more pragmatic world view must somehow get this message through: It's time to stop sacrificing the important to the trivial. The ICC tail must stop wagging the dog of American foreign policy.
* * * * *
The following article appeared in
The Toronto Star, dated August 18, 2002
Legal aid strike causing chaos
By Tracey Tyler
ORANGEVILLE
— This area of gently rolling hills and four powerful rivers was once part of a
trail used by indigenous peoples. Today, it's a fast-growing bedroom community
that holds tight to its architectural treasures, like the 120-year-old Dufferin
County courthouse.
The
high-Victorian style building sits on Louisa St., a thoroughfare shaded by
maples and oaks. Up on the second floor is an arched window looking straight
into Justice of the Peace Deborah Scarlett's courtroom, where weekly
"assignment court" is underway.
On
this day, the courtroom is bursting with about 150 people waiting to set trial
dates. Up front is the crown attorney's table, covered with papers. Next to it
is the defence table, bare except for a water pitcher. The staff haven't put
out any glasses — and who could blame them? Hardly anybody's shown up for
months.
Dufferin
County, like many parts of Ontario, has been hit by a strike by legal aid
lawyers, fed up with a tariff that has barely changed in more than 15 years.
A 5
per cent pay raise by the province late last month, which increased the hourly
base rate from $67 to $70.35, was quickly labelled "an insult" and
hasn't diminished the job action. A coalition of criminal, family, civil and
immigration lawyers is pushing for rates to be increased to between $100 and
$125 an hour.
"The
reality is, in Dufferin County, hardly anybody does legal aid anymore,"
says lawyer David Thwaites, president of the Dufferin Law Association.
Here,
the protest takes two forms. The first is a flat-out refusal to accept legal
aid certificates, a type of voucher that can be used to retain a lawyer. The
second is a refusal by lawyers in private practice to serve as duty counsel, a
job that involves helping people who show up in court without a lawyer.
Lawyers
will make exceptions and act as duty counsel in emergencies, which include bail
hearings for people in custody and family court hearings for people whose
children have been seized by children's aid.
Everyone
else, however, is out of luck. And that has left many people in this courtroom
intimidated and confused.
Ken
MacAskill, a local mechanic, was charged four months ago with two counts of
assault and one count of breaching probation. He says the charges are
"completely bogus" so he's going to trial. He's been approved for
legal aid, but hasn't been able to find anyone willing to take his case, even
though he's called more than 70 lawyers since April. Now he finds himself
standing in front of Scarlett, who wants to set a date for a pre-trial
conference within a week.
"It's
fairly safe to say I will not have proper representation at that time,"
says MacAskill, but Scarlett says it isn't essential. "There's no finding
of guilt or innocence or anything along those lines," she says. The
purpose of the hearing is to try to narrow issues in order to save court time
or avoid a trial altogether by negotiating a guilty plea.
But
MacAskill thinks he'd be better off with a lawyer who would be able to point
out any weaknesses in the prosecution's case and know what defences might be
available and whether the evidence would even stand up in court.
"They're
forcing me to proceed anyway, even though they know I won't have a lawyer by
then," he says outside court.Back in court, Scarlett is dealing with a
heavyset man in red shorts, having a near-meltdown. "What is the
procedure?" he asks. "What is the procedure?"
He
was charged with impaired driving and was hoping duty counsel would help him
decide whether he should go to trial or plead guilty. Scarlett points him in the
direction of a conference room outside the back door, where he joins a lineup
of people waiting for a "resolution meeting" with a crown attorney
during the morning recess.
Anthony
Williams, who was the crown attorney in Dufferin County for 20 years, has come
back to help out for the summer. While not everyone in court is without a
lawyer — some could afford to hire them privately — the absence of duty counsel
creates added strain for judges and accused alike, he says.
Judges
have to step in and try to explain court processes that people are often
unaccustomed to.
"Duty
counsel provide many valuable services, not the least of which is helping to
diffuse the terror many people experience during their first visit to the
criminal justice system," Williams said in an interview.
Shelley
Gordon is experiencing that first-hand. Her boyfriend, who speaks mainly
French, is charged with mischief and is relying on her to do his talking. When
his case is called, the couple, dressed almost identically in hooded grey sweatshirts,
walk to the front of the court.
"He
wants to plead guilty, but put it off for a couple of weeks until duty counsel
is no longer on strike," Gordon says. Scarlett explains there's no telling
when duty counsel will be back and books Aug. 20 as a date for his guilty plea.
"I
was nervous," Gordon admits later. She arrived hoping to speak with duty
counsel "because it's a lot harder for me to talk to a judge."
Her
boyfriend doesn't want to enter a plea without talking to a lawyer. He wouldn't
qualify for legal aid because his charge isn't likely to result in jail time
and, although he has a job, he doesn't earn enough money to hire a lawyer, says
Gordon. "We're stuck in the middle."
What
if the strike is still on when they return to court? "I guess I'm going to
have to speak for him and think like a lawyer would."
Orangeville
holds the distinction of being at the centre of Premier Ernie Eves' riding. A
notice posted on the door of the duty counsel office at the courthouse tells
the public "if you support the lawyers in trying to get an increase in
legal aid rates, call or fax Ernie Eves."
Eves'
constituency office is in a three-storey brick house on Broadway Ave., across
from the United Church. When The Star stopped by to ask if there had been any
feedback, Lynn Gibson, Eves' executive assistant, looked perplexed. Not a
single person has called or visited in person to complain about the situation,
he said.
Thwaites
says he's "not surprised." The provincial government's response to
the job action has been to accuse lawyers of holding poor people hostage, he
noted. Attorney-General David Young has called the series of strikes
"totally unacceptable" and said they'll only end up hurting the
vulnerable.
"It's
easy to paint the lawyers as the bad people, but it's the government that's
created this matter over the years," said Thwaites. "They've created
their own mess."
Orangeville
lawyer Larry Haskell tries to be pragmatic. "The money it would take to
fix the legal aid system would probably run the hospital system for about three
minutes," he contends.
For
the record, Ontario spent about $40 billion on health care last year, about $75
million on crown attorneys and about $44 million on the salaries of
provincially appointed judges. In Toronto this year the police budget is $589
million.
About
$175 million was spent on legal aid certificates and duty counsel last year.
The total cost of legal aid, including community legal clinics, which help with
things like landlord and tenant problems, was $220 million. Lawyers say the
tariff increases they're requesting would cost $66 million over three years.
"Thirty-seven
years without being in trouble," Todd Pattingale mutters, standing on a
bridge connecting the old courthouse to a modern addition. His record was
shattered last Valentine's Day, when he was charged with assaulting his
girlfriend. Pattingale blames her out-of-control child.
He
just came from setting a trial date in Scarlett's courtroom, where he explained
that he has a legal aid certificate, but no lawyer. "Every lawyer I call,
I keep hearing the same story," he says, a cell phone sticking out of his
back pocket.
So
far, Pattingale has muddled through various pre-trial procedures on his own,
though it's been something of a blur. He can confirm he had a pre-trial
conference with the crown.
"What
happened?" asks Scarlett.
"He
wrote down a bunch of stuff," Pattingale offers.
Williams,
the crown, tries to get to the bottom of things. "Were the words `plea of
guilty' ever used by you?" he asks.
Pattingale
says he's never breathed the words, so it's left for Scarlett to schedule a
trial. There's a free date 12 days from now, but Pattingale wants to be
represented by a lawyer and that puts Scarlett in a bind. She and local judges
are under a directive to set a date for a trial or guilty plea within three
months of any case coming into assignment court.
Yet
forcing Pattingale to proceed without a lawyer could violate his rights.
"Do
you understand the quandary?" she asks.
"Oh,
indeed, there is a quandary," William says.
Scarlett
schedules the trial for the next available court date, June 11.
"My
life's on hold until 2003," Pattingale says sullenly, outside court. In
the meantime, he'll "keep calling lawyers."
The
next day is family court day in Orangeville. A dark-haired man with a moustache
sits outside a small courtroom on the second floor of the courthouse, a
briefcase full of papers on his lap. A few days before, he arrived at the
courthouse in a state of desperation, hoping duty counsel could help him get
back his 8-year-old son.
He
says his wife fled to British Columbia with the boy on July 15. "We were a
family for 17 years."
While
police laid criminal charges against her, he went to work on an emergency
application to get the child back. Orangeville family lawyers that he called
said they were too overworked to take his case, so he headed to the duty
counsel office only to find it empty.
"I
didn't read the signs (about the strike). I was panicking. I had to do
something right away."
He
spent the next five hours in the courthouse cafeteria, filling out application
forms for a custody hearing, which was no easy task. "I have no legal
background; I work in construction."
He
appeared in court by himself the next morning and came back a week later, when
a local lawyer who had clients in court agreed to take his case, which he
eventually won.
Others
can only hope they'll be that lucky.
MacAskill
represented himself at his pre-trial conference last Thursday, when the crown
agreed to drop one of his assault charges and offered to drop the charge of
breaching probation if MacAskill pleaded guilty to the remaining charge of
assault.
MacAskill turned down the deal;
he's holding out for a lawyer.
* * * * *
The following article appeared in The Globe and Mail, dated August
19, 2002.
The following article appeared in
The New York Times, dated August 18, 2002.
Citing Money Concerns, Judge
Rejects Death Penalty
By Adam Liptak
A judge in a small, poor Ohio county told prosecutors there this month that they could not seek the death penalty in the murder of a college student because the county’s share of he defense costs would be too great.
The decision, which experts say is the first of its kind, is a rare judicial acknowledgment of the powerful role money plays in death penalty cases.
“The law acknowledges that capital cases are different and require enhanced due process, for obvious reasons,” Judge Jeffrey L. Simmons of the Court of Common Pleas in Vinton County wrote.
Noting that such cases “require additional resources,” the judge added: “While the court has authority to approve expenses, it would be disingenuous to suggest that a trial judge can consider such requests without an awareness of the financial impact on this county. The court finds that the potential impact of financial considerations could compromise the defendant’s due process rights in a capital murder trial.”
The defendant, Gregory McKnight, is accused of killing Emily Murray in 2000. Ms. Murray, then 20, was a student at Kenyon College in Gambier, Ohio. She had been missing for a month when her body was discovered in Mr. McKnight’s trailer, 80 miles away in Ray, Ohio, south of Columbus.
Mr. McKnight, 25, has also been charged with a second murder, in which the death penalty has not been sought. He was convicted of another killing as a juvenile in 1991 and served six years. He is now in prison on a burglary charge.
K. Robert Toy, who represents Mr. McKnight, said that his side’s cost to try the case might amount to $75,000. Along with appeals and other post-conviction litigation, total defense costs could reach $350,000, Mr. Toy said.
The state and county split defense costs roughly 50-50.
Michael M. Bledsoe, the president of the Vinton County Board of Commissioners, said the judge was right about the financial impact of the case but wrong to usurp the board’s decision.
The county, Mr. Bledsoe said, has a population of about 13,000 and an annual budget of $2.7 million. “There’s not a lot of money there, but still we’re a can-do county,” he said.
Mr. Bledsoe said the county financed the prosecutions of “four or five” murders last year. “It did throw hardship on the county,” he said, “but we scraped by.”
Mr. McKnight’s case, though, is the only capital murder case in Vinton County in recent memory.
“In my position, I’m willing to stand behind what they want to do,” Mr. Bledsoe said, referring to the prosecutors and the grand jury. “If they need the money, we’ll find it.”
On Wednesday, prosecutors asked Judge Simmons to reconsider and filed an appeal.
“In essence what the judge is saying is that there’s a death penalty in Ohio but not in Vinton County,” said Joe Case, a spokesman for the attorney general’s office. “There is nothing in the law that would allow the judge to dismiss the death penalty components of the charges. The people have a right to prosecute the case.”
Judge Simmons was also mistaken about the financial impact of the case, Mr. Case said. “Regardless of whether it’s a death penalty trial or just a murder trial, the cost is roughly going to be in the same ballpark,” he said.
Gregory W. Meyers, the chief counsel in the death penalty division of the state public defender’s office, disagreed. “There’s a lot of procedural rigmarole that applies only in death penalty cases” Mr. Meyers said.
Capital defendants, for instance, are entitled to two lawyers, while others get one. Jury selection is more complicated, as lawyers are entitled to inquire closely into jurors’ views on the death penalty. Sequestering the jury during deliberations is required in capital cases and optional in others.
Most important, Mr. Meyers said, “The simple thudding reality is that for death penalty cases there are two potential trials: the trial phase and the penalty phase.”
At the same time, he acknowledged that defense lawyers make cases as expensive as they can, within the bounds of the law, in the hope that financial issues will cause prosecutors to accept a lesser plea.
“One of the tools of defense lawyers is to work the bank,” Mr. Meyers said. “Sometimes you know darn well that what you’re doing is grinding them down. There are many cases where, at the margin, a non-death plea is on the table because of money.”
Cynthia Murray of Cold Spring, N.Y., is Emily Murray’s mother. She said the main problem with Judge Simmons’s ruling was not obvious.
Ohio law contemplates life without parole as a possible sentence only where the death penalty is also in play. “If this judge’s ruling stands and he’s charged with only aggravated murder, the penalty would be only 20 or 30 years to life,” Ms. Murray said. “I don’t care if McKnight is put to death or not, but there should not be the slightest possibility that he will ever by free. I don’t want to think about it 20 years from now that he should be walking around.”
She added: “The worst thing that could ever happen has happened to us. I just want McKnight to be put away forever and ever.”
* * * * *
The following article appeared in
The Globe and Mail, dated August 13, 2002.
Antiterrorism action weak,
ineffective, lawyers hear
By Kirk Makin
The most tangible sign of Canada’s reaction to the Sept. 11 tragedy is heightened airport security – a response that is bound to look pathetically weak should more terrorist acts occur, the Canadian Bar Association was told yesterday.
“The only thing that has really happened in the last 10 months is that airport security has been beefed up,” Darrell Bricker, president of Ipsos-Reid polling firm said during a debate about the effects of Sept. 11 at the London, Ont. Conference.
“Has antiterrorism legislation made anyone feel safer?” he asked. “I think the answer is probably not.”
Another participant in the debate, University of Toronto foreign-policy expert Janice Stein, said that, while civil liberties have been unnecessarily compromised in the name of security, Canada remains promising terrain for terrorists because of several policy shortcomings.
Ms. Stein was especially critical of Canada’s failure to bring police and intelligence-gathering institutions together in order to pool information and strategies. This folly mirrors a similar problem in the United States, she said, where the Central Intelligence Agency and the Federal Bureau of Investigation remain separate islands of intelligence.
Canada cannot afford to be complacent, Ms. Stein said, because, unlike other countries, it is a natural organizing points for terrorists who hope to stage an attack on the United States.
“I think we’ll have an unforgiving public in this country if our territory is used to open that door a crack,” Ms. Stein said. “And I think we would have an unforgiving government in the [United States].”
With Bill Graham, the federal Minister of Foreign Affairs, sitting in the audience at the CBA convention, Ms. Stein urged Ottawa to create a level of civilian oversight of Canadian intelligence agencies.
“We need a trained, independent civilian role in how these agencies are integrating,” she said.
Another speaker, Liberal MP Irwin Cotler, defended the way his government acted against terrorism last fall. However, he acknowledged that the legislation went too far in several respects and warned that nobody should delude themselves that the five-year “sunset clause” attached to the new law will make the demise of the legislation a simple matter.
Unlike true sunset clauses, Mr. Cotler said, the provisions can be renewed without the debate and procedural hurdles that are necessary when a law has to be formally re-enacted.
Mr. Bricker said that in the weeks after the terrorist strikes in the United States, Canadians felt as though their government was “absolutely defenceless” to respond.
While people still fee less secure now than they did prior to the attacks, he said, there has been a steady upswing in the feeling that events are under control and civil liberties must be respected.
Mr. Cotler affirmed this point, remarking that his mail from the public has changed dramatically in recent months. Prior to the passage of Bill 36, he said, it overwhelmingly urged the government to combat terrorism at almost any price. Since then, he said, the number of those supporting the protection of civil liberties has increased substantially. In a speech before the panel debate, moderated by CBC anchor Peter Mansbridge, Mr. Graham said Canada has strived to find a balance between civil liberties and security.
However, he warned that nations such as Canada must be extremely vigilant to guard against their own antiterrorism strategies lest they provoke “a clash between nations where we make Islam the enemy.”
Mr. Graham said critics ought to be aware that despite strong pressure from some quarters last fall for the government to invoke the notwithstanding clause in the Charter of Rights to insulate Bill C-36 from the courts, it resisted the temptation to do so.
However, Hugh Segal, a prominent figure in the Progressive Conservative Party, criticized Bill C-36 during yesterday’s debate as beign a well-intentioned, but overreaching panic reaction to terror attacks.
* * * * *
The following article appeared in The Guardian, dated August 20, 2002.
Woman faces
death by stoning 'after weaning'
By
Chris McGreal
An
Islamic court in Nigeria upheld a sentence of death by stoning on a woman
convicted of adultery yesterday, defying a government ruling that the death
penalty for adultery is unconstitutional.
The judgment has therefore paved the
way for a clash with the federal courts on the validity of the Islamic law
applied in northern states, an issue which has already led to thousands of
deaths in communal riots.
The Islamic high court in Funtua,
Katsina state, rejected Amina Lawal's argument that her conviction for adultery
was invalid because the child born as a result of the liaison was conceived
before sharia law took effect in Katsina.
Her lawyers added that the divorced
mother-of-three had not been legally represented at the original trial before a
village court in March, and that she did not know she might be condemned to
death.
Ms Lawal, who was clutching her
eight-month-old daughter, wept at the ruling and dozens of spectators cheered
and shouted "God is great".
The court ruled that she cannot be
executed until she has finished breastfeeding her baby daughter, Wasila, which
the judge said would not be before January 2004.
Before that there is likely to be a
highly charged legal battle over the constitutionality of sharia law, which has
long been applied to civil and family cases in Muslim regions of Nigeria but
has recently been expanded to ban alcohol and impose severe penalties for theft
and adultery.
It has the apparent blessing of most
of the population in the north, where most people are Muslim. But it has met
with deep hostility from Christians and people from other parts of the country
living in the north.
More than 3,000 people have died
since 1999 in riots against the introduction of sharia in northern cities with
sizeable non-Muslim populations. Any attempt by Islamic courts to override the
federal supreme court is likely to provoke even greater suspicion and enmity.
The federal government has already
declared aspects of sharia law unconstitutional, including the death penalty
for crimes such as adultery and the severing of limbs for theft.
The supreme court is likely to
agree, particularly as many sharia trials fall well short of the prescribed
standards of justice.
But the governors of northern states
have made political capital from pressing for more stringent Islamic laws,
modelled on those in Saudi Arabia and Sudan, promising the vast numbers of poor
that sharia will end corruption and improve their lives.
Any attempt by the government to
block the more extreme elements of sharia is sure to meet with violent protests
by some of its millions of supporters.
Ms Lawal is not the first woman
sentenced to death for alleged adultery.
Safiya Hussaini, who was convicted
in similar circumstances last year, won an appeal on the grounds that she had
sex out of wedlock before sharia law took effect.
But a teenage single mother was
given 100 lashes early last year for adultery, even though she argued that she
was raped by three men.
The court said that Bariya Ibrahim Magazu could not prove that the men forced her to have sex.
* * * * *
The
following appeared in The Guardian Unlimited – Internet Edition,
dated
August 20, 2002.
Susie Steiner explains the Islamic legal
system which has sentenced a Nigerian woman to be stoned to death
Why is sharia law in the news?
An Islamic court in Nigeria
yesterday upheld a sentence of death by stoning for a woman accused of
adultery. The case is the latest in a series of sentences passed under sharia
law - a set of religious laws adopted over the past two years in northern
regions of Nigeria, which have predominantly Muslim inhabitants.
Sharia law, which derives from the teachings
of the Koran and from Sunna (the practice of the prophet Mohammed), is
implemented to varying degrees in different Islamic countries - from the
beheadings of Saudi Arabia, to the relatively liberal social mores of Malaysia.
What is sharia?
The word sharia means "the path
to a watering hole". It denotes an Islamic way of life that is more than a
system of criminal justice. Sharia is a religious code for living, in the same
way that the Bible offers a moral system for Christians.
It is adopted by most Muslims to a
greater or lesser degree as a matter of personal conscience, but it can also be
formally instituted as law by certain states and enforced by the courts. Many
Islamic countries have adopted elements of sharia law, governing areas such as
inheritance, banking and contract law.
What does sharia decree?
Sharia offers a code for living
governing all elements of life, from prayers to fasting to donations to the
poor. It decrees that men and women should dress modestly, which in some
countries is interpreted as women taking the veil and the sexes being
segregated.
"Sharia governs the lives of
people in ways which are not governed by the law," says Lynn Welchman,
director of the Centre for Islamic and Middle Eastern Law. "Over 50
countries are members of the Organisation of Islamic Conference, and you can
expect there will be some form of compliance with sharia - either in people's
personal lives or enforced through the courts by the state. A lot of states in
the Middle East are taking more elements of sharia into their state laws."
What are Hadd offences?
Within sharia law, there is a
specific set of offences known as the Hadd offences. These are crimes punished
by specific penalties, such as stoning, lashes or the severing of a hand. The
penalties for Hadd offences are not universally adopted as law in Islamic
countries.
Some countries, such as Saudi
Arabia, claim to live under pure sharia law and enforce the penalties for Hadd
offences. In others, such as Pakistan, the penalties have not been enforced.
The majority of Middle Eastern countries, including Jordan, Egypt, Lebanon and
Syria, have not adopted Hadd offences as part of their state laws.
Hadd offences carry specific
penalties, set by the Koran and by the prophet Mohammed. These include unlawful
sexual intercourse (outside marriage); false accusation of unlawful
intercourse; the drinking of alcohol; theft; and highway robbery. Sexual
offences carry a penalty of stoning to death or flogging while theft is
punished with cutting off a hand.
"This is a system of criminal
law which has become a potent symbol of Islamisicing the law," says Dr
Welchman. "But there is the question of whether it's actually applied in
the countries which have adopted it. There is supposed to be a very high burden
of proof, but that clearly often doesn't happen in practice."
Many Islamic countries will have
adultery and the drinking of alcohol defined as criminal offences in law, but
they are not defined as Hadd offences because they do not carry the Hadd penalty.
They are often punishable by a prison term instead.
What is likely to happen to the
woman sentenced to death in Nigeria?
Amina Lawal, 30, has been sentenced
to death by stoning - a fate which would involve being buried up to her neck in
sand and have rocks thrown at her head. However, the Islamic court has ruled
that the penalty cannot be carried out until Lawal has finished breastfeeding
her baby daughter, Wasila, which the judge said would not be before January
2004.
Meanwhile, the sentence is provoking
civil unrest, with riots breaking out between Christian and Muslim communities
over how far the rule of sharia might spread.
In sentencing Lawal, the Islamic
court disregarded an earlier ruling by the federal courts, which deemed the
death penalty unconstitutional for offences such as adultery.
The supreme court is likely to step
in, particularly as many sharia trials fall short of the expected standards of
proof. But it faces stiff opposition from governors of Nigeria's northern
states, which have made political capital out of promising a Saudi-Arabian
style strictness in the adoption of sharia, offering it to the disenfranchised
poor as a way of improving their lives. In the past two years, 12 out of
Nigeria's 36 states have adopted sharia law.
What sentences have been passed
down so far in Nigeria?
Safiya Hussaini, 35, was sentenced
to death by stoning in October for allegedly having a child with a married
neighbour. She had the child after her divorce, but maintained the father was
her former husband and that they were married when the child was conceived. The
court convicted her, but Hussaini won an appeal, this time alleging that she
had sex out of wedlock before sharia law took effect. Amina Lawal put forward a
similar argument during her trial, but it was rejected by the courts.
Last year, a teenage single mother
was given 100 lashes for adultery, even though she argued she was raped by
three men. The court said Bariya Ibrahim Magazu could not prove that the men
forced her to have sex.
In May this year, a sharia court in
Jigawa sentenced Sarimu Mohammed, 50, to death by stoning for raping a
nine-year-old girl - the first death sentence imposed on a man for rape or
adultery. In Bauchi, Adama Unusua, who is 19 and pregnant, was recently sentenced
to 100 lashes for having sex with her fiance.
Will sharia law prevail in
Nigeria?
The issue is already provoking
violence between Muslim and Christian communities, particularly in the south,
where sharia law is not in force. Nigeria has a Christian president, Olusegun
Obasanjo, who hails from the south. He has stated that "sharia is not a
new thing and it's not a thing to be afraid of", and said the federal
government would not dispute the rights of states to use it. General Obasanjo
received significant support from northern Muslims at the last election.
He has attempted to deal with the
sharia problem through compromise, by persuading courts in the north to modify
their sentences. In March, the government ruled that the strict version of
sharia law practised in Nigeria's north was illegal under the country's
constitution. Though it did not explicitly mention the case of Safiya Hussaini,
the ruling came days before her appeal hearing.
The justice minister, Godwin Agabi, wrote to the 12 northern states which have Muslim majorities, saying that "a Muslim should not be subjected to a punishment more severe than would be imposed on other Nigerians for the same offence". Mr Agabi noted that Nigeria "cannot be indifferent" to international outrage over the sentences. The situation is likely to be further inflamed in the run up to elections in April 2003.