Somebody did something somewhere at some time

Chess game-like struggles take over in BC Supreme Court publication ban case

by Kevin Potvin <kpotvin@republic-news.org>

A fascinating event occurred at 800 Smyth Street last Thursday. That’s the address of the British Columbia Supreme Court. In room 65 on the sixth floor of that building, after a full day of intricate chess-like discussion between six lawyers and a judge, it was decided that almost three weeks later, on October 17, a challenge can finally be heard to a publication ban barring me from telling you anything about this case, first imposed nearly a year ago in December 2004.

In the room were two lawyers speaking for the Attorney General of British Columbia. Though there was no discussion last December before the judge imposed the publication ban, the AG seems desperate to keep the ban imposed. The ban is on “anything tending to identify the proposed defendant in this proceeding and the nature of any proposed charges,” according to the Supreme Court Record of Proceedings.

Also in the courtroom last Thursday were two lawyers representing LAW. Lawyers Against the War is an international group who oppose the illegal use of force in wars in Afghanistan and Iraq and who are pressing for the rights to fair trials and humane detention of combatants and non-combatants alike currently held by US forces in Abu Ghraib in Baghdad and at Guantanamo Bay in Cuba, as well as tens of other secret sites around the world.

Also present were two lawyers from the BC Civil Liberties Association there to intervene as third parties in the case, and a full house of spectators.

The LAW lawyers were there to argue that the publication ban should be lifted since no ongoing investigation would be imperiled by public knowledge of this case, no person would be unduly damaged by the charges, and no national security issue was at stake. The BC Attorney General’s Office was there to argue that the case is moot because the BC Supreme Court does not have jurisdiction over the case because it involves international law.

That’s when the chess game broke out. LAW wanted the publication ban directly addressed by the court that day, but the AG argued about jurisdiction instead, leaving the judge to devote the day to deciding which of those two arguments would go first.

If the publication ban was to be argued first, it is possible the judge would decide to lift the ban, thereby exposing the second question about jurisdiction to full public scrutiny. But if the jurisdiction question was to be argued first, it would happen under the still-existing publication ban, and its details and outcome might never be reported.

This took all day to resolve. No wonder it takes 18 lawyers to screw in a lightbulb.

Outside the courtroom, I spoke to the lawyers representing the BC Attorney General’s office, asking what their interest was in seeing that the publication ban remained firmly in place. After all, the proposed defendant is not a citizen of Canada and the nature of the proposed charges is extremely well-known around the world. “You know the saying, hard cases make bad law,” one lawyer told me, apparently worried that allowing the public to learn about this case imperiled the AG’s ability to ensure sound decisions were being made in BC court rooms.

The other AG lawyer then told me their office was only trying to ensure that nothing is made public without a proper judge’s order. I replied that I thought everything in BC courts was public in the first place unless there was legal order against it. That’s when the two lawyers told me to talk instead to the media officer for the AG, and they turned and slipped inside the shroud of the courtroom again. By the end of the day, it was decided the publication ban question would go first, but not until October 17.

LAW is a serious and worthy international lawyers organization represented in Canada by Vancouver’s very busy Gail Davidson. Gail Davidson and LAW made headlines in November 2004 when they filed torture charges against George W Bush under the Canadian Criminal Code. The charges were laid under the UN Torture Convention ratified by both the United States and Canada. Far from being a lark, the treaty signed by Canada and the nature of the well-documented events at Abu Ghraib and Guantanamo Bay the last two years obligate our justice system to accept and pursue such charges. It is LAW’s assertion on its website that Canada is in breach of its own treaty obligations so long as it does not bring war crimes charges against George W Bush.

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