behind the curtain of Canada's legal system

This past weekend the Federal Court of Appeal ordered the Harper government to ask the Americans to release Omar Khadr from Guantanamo Bay because Khadr's Charter rights had been violated. Is there a reason why no one is asking about the political leanings of the judges on the FCA?

The previous weekend Sonia Sotomayor was sworn in as a justice of the United States Supreme Court. Even in Canada, one would have had to have been living under a rock to not have heard of her and that there there was a political debate associated with her nomination.

Whatever Sotomayor's judicial activism may have been, it was dwarfed by that of Supreme Court of Canada Justice Claire L'Heureux-Dubé, who was appointed by Brian Mulroney in 1987 and who retired in 2002. Robert Ivan Martin, a former Canadian artillery officer, NDP candidate, and professor of law at the University of Western Ontario, has described L'Heureux-Dubé's tenure on the SCC as a "national disgrace". Yet how many Canadians have ever heard of her? During my time at the University of Alberta Law School, I was astounded at the lack of debate over this feminist ideologue's preference for judging on the basis of social science studies that she (or, more precisely, her clerks) had dug up and had not been introduced or developed in the lower court trial proceeding. Who needs to study the law or the facts of a case when sociologists are there to tell you who is the oppressed and who is the oppressor?

The sad fact is that, in marked contrast with the transparency that exists is the US, the legal community here is actively engaged in suppressing inquiry that might make a Canadian judge an object of controversy. In June, an American researcher was blocked from making the same inquiry about the inner workings of the Supreme Court of Canada that he had successfully made about the US Supreme Court. In March, two professors attempted to contact several hundred lawyers to ask their perspectives on the competency and biases of various judges in Canada but “[a]pprehension [was] running high that the results could be used to discipline or discredit judges whose leanings on controversial criminal law issues or the Charter of Rights run counter to the conservative philosophy of the Harper government." The McGuinty government accordingly told its prosecutors to not participate in the survey and a number of provincial law societies (lawyer guilds) also opposed the academic investigation.

What is remarkable about this excuse for opposing transparency is that Harper's government, like Mulroney's, has not been appointing conservative judges. It is accordingly the "conservative philosophy" of the ordinary public that is seen as the real threat. The Harper government appointed Russel Zinn, whose left lean was strong enough for him to confuse the very much alive and well Abu Sufian Abd Al-Razziq with the dead by describing him as "as much a victim of international terrorism as the innocent persons whose lives have been taken by recent barbaric acts of terrorists." Zinn had been advocating for "human rights" for many years in the less-than-obviously-related field of labour law prior to his elevation.

Justice Zinn declared in the same decision that "[t]here is no reason to challenge the applicant’s assertion in his affidavit that he was tortured while in detention." This is simply false, and while the reasons are legion, one could start with Abd Al-Razziq's October 2008 cross-examination on an affidavit that he swore to in June of that year. Unfortunately, the only place on the internet where I'd found an archive of primary sources related to Abd Al-Razziq (I'm not a practicing lawyer and don't have Quicklaw/LEXIS access, etc) was on Osgoode Hall's web server. Which would be fine, except that after I sent the following e-mail to Hazel Pollack on July 30

Reportedly French antiterrorism agents interrogated Abdelrazik in Sudan and French judicial documents state that Abdelrazik is an important Islamic Jihad activist who is close to [Abou] Zoubeida [aka Abu Zubaydah].
I have not been able to locate any French sources to this effect. Are you aware of any? Thank you,
Brian Dell

my e-mail was ignored and, more importantly, the archive was removed from the website [UPDATE: since I posted this it has reappeared]. Hazel Pollack was cited as the contact person for the web archive and is an "assistant" to Craig Scott, whose political leanings should be pretty obvious from his biography [UPDATE: listed contact is now Professor Sean Rehaag].

Although the material is no longer available (because Professor Scott realized it would not square with the story the MSM has been spinning about Abd Al-Razziq?), I had made a few notes after taking a look at the 2008 cross, which is just one of the documents submitted by the Minister of Foreign Affairs. For starters, Abd Al-Razziq is on record stating that he lied to both Canadian interrogators and the FBI about intending to go to Chechyna. He was originally admitted to Canada as a refugee from Sudan but his associated claims about what would happen to him should he return while the same regime was in power ought to be, shall we say, rather suspect given that not only did he voluntarily return to Sudan in March 2003, he abandoned his wife, his children, and a pregnant mistress (Lisa Lebrun) in Montreal to do so. When, during the cross-examination, he was asked if "Myriam [St-Hiliare, your wife in Montreal] was fine that you had had a child with another woman?" he declared, contrary to all probabilities of human nature, that she was. Abd Al-Razziq then married yet another woman in Sudan in 2004 and had a child with her in 2005. I don't know who he thought he was kidding when he then proceeded to falsely swear in 2008 that "all my children and stepchildren remain in Canada".

Abd Al-Razziq never bothered to get a regular job while free in Sudan (or in Canada, for that matter) despite having spent the first 28 years of his life there, saying this was because of Sudanese intelligence. However, an equally plausible reason might be the fact that Canada provided him with $500 worth of support each month while he was seeking refuge in the Canadian embassy in a country where the median annual income is $800. More telling re Abd Al-Razziq's credibility was his inability to keep his story straight during his cross-examination. To take one example of many,

Q. Now, Mr Abdelrazik, if we can return to April of [2008], I understand you met with a journalist from the Globe and Mail?
A. A journalist? No, I did not meet with a journalist.

Abd Al-Razziq's problem was that he had been insisting until that point that he had lied "in order to escape the pressure of torture" and had failed to allege his torture previously because public disclosure of his torture while in Sudan would put him in jeopardy. Hence admitting to voluntarily telling a journalist while still in Sudan that he had been tortured would undermine his claim of jeopardy. Upon being presented with incontrovertible evidence that he HAD, in fact, met with a journalist, he then decided that it served his credibility better to switch his story.

Even more to the point, Abd Al-Razziq claimed that he told consular officers David Hutchings, Allan Bones, and Michael Pawsey in 2004 that the Sudanese tortured him. But all of these officials independently and directly contradicted Abd Al-Razziq's claim. On top of this additional doubts were raised about the particularities of Abd Al-Razziq's torture claims, which shouldn't need review since I believe the point has been made: to state, as Zinn, J. did, that there is not just "little reason" but "no reason" to even "challenge" Abd Al-Razziq's "assertion" that he was tortured is astounding.

Although the Canadian government had asked the UN in 2007 to remove Abd Al-Razziq from its terror list, Justice Zinn still found the government liable such that issuing Abd Al-Razziq an emergency passport (something the government had good reason to be circumspect about given Abd Al-Razziq's history of reporting a "lost" passport in the 90s) was insufficient: with no acknowledgement of the distinction between negative rights (the right to live without government interference) and positive entitlements, the Charter right of a citizen to enter Canada was read as a right to promptly provided taxpayer-financed transportation to the country.

One would never guess that Abd Al-Razziq's credibility has ever been questioned from the mainstream media's coverage of his travails. We are supposed to believe that Abu Zubaydah's info about him is not worth anything, yet Zubaydah's evidence that he saw Odil Charkaoui training in Afghanistan in 1998 was independently confirmed by Ahmed "Millennium Bomber" Ressam. This same Charkaoui happens to be linked to both Abd Al-Razziq (Charkaoui "saw him everywhere in Montréal") and the Tunisian recruiter Hannachi, whom Abd Al-Razziq went to Afghanistan with in 1996. The MSM also continues to exclusively propogate Abd Al-Razziq's preferred rationale for his return to Sudan, namely, that he was there to visit his sick mother, yet his associate Samir Ezzine has sworn otherwise.

As near as I can tell, I am the only one to dig a little deeper, and then only because as a graduate of a Canadian law school I have life experience based suspicions about the level of bias that exists in legal academia and the enthusiasm of the legal community for Orwellian rhetoric about how openness would "politicize" the judiciary.

There is a good reason why the largest anti-corruption body acting globally is called Transparency International. Transparency allows the public to come to a conclusion about what was formerly in the dark. It's time for Canada's legal community to let the light shine.