The rights of terrorists? What rights?

The debate centres on whether the law sees them as another form of ordinary criminal or as a combatant, says lawyer MARVIN KURZ
The Globe and Mail, Print Edition, 25/02/06

Let’s imagine Osama bin Laden were sitting at a corner cafe, sipping a latte and reading the Internet edition of The Globe and Mail. Let’s imagine further that the U.S. government finds out. Must it try to bring him in peacefully, like the cops in Dragnet used to bring in the perp? Or does it have the right to take whatever steps required to stop him, even to the point of killing him?

That question illustrates the nub of a sizzling debate about legal responses to terrorism between two law professors at the recent Raoul Wallenberg International Human Rights Symposium, organized by Osgoode Hall Law School at York University in Toronto.

This debate strays far from the arcane discussions of legal precedent that often occur in the ivory towers of academe. It concerns a real-life issue, one with which democracies around the world must grapple. Last month, the United States unsuccessfully attempted to assassinate al-Qaeda’s second-in-command, Ayman al-Zawahri in a Pakistani mountain village. Israel, the petri dish of anti-terrorism, has successfully targeted terrorists for years, including the leaders of the recently elected Hamas. It sees targeted killings as a necessary tool in its war against terror. The deaths of the implacable Hamas founders, Sheik Ahmed Yassin and Abdel Aziz Rantisi, may have helped spur Hamas to enter candidates for the Palestinian parliament, and even to refrain from mentioning its goal to eliminate Israel, during the election campaign. This does not make a criminal group like Hamas into Wilsonian democrats. They remain a criminal terrorist group, justly banned in Canada, the United States and Europe. But Israel’s anti-terror policy has helped to lesson terror attacks from a murderous foe.

The best debates bring out the heart of an issue. Here it is whether the law sees terrorists as another form of ordinary criminal, or whether they are combatants who can be killed where they are found. New York University professor Phillip Alston has argued in favour of the proposition that terrorists must be afforded human rights in much the same manner as ordinary criminals.

He claims that the Hague Convention of 1899 and the Geneva Conventions impose this obligation. No fan of George Bush and his war on terror, Prof. Alston argues that America has faced greater crises than that posed by Osama bin Laden and his Islamofascist colleagues. Prof. Alston points to the fact that the Americans withstood Nazism, Communism and the threat of an atomic arms race without imposing the Patriot Act. Because Muslim fundamentalism does not pose an existential threat to the West, Prof. Alston believes international law should change to apply human rights concepts to the new form of combat invented by modern terrorists. That is where we have to allow the law to evolve to protect the rights of terror suspects. They should not be subject to indefinite detention if we cannot prove that they are criminals, and they most certainly should not be targeted, for “extrajudicial killing.”

On the other hand, Israeli professor Yoram Dinstein, of Tel Aviv University, has little time for what he sees as ivory tower hokum. He argues that blanket defenders of the civil liberties of terrorists do not live in the real world. It is a place where terrorists such as Hamas can declare bloody war on Israel, and al-Qaeda can do the same to the West. Those defending their rights fail to recognize the difference between the laws of war and ordinary criminal law. In fact, to use Prof. Dinstein’s colourful metaphor, they represent the librettos of two different operas. La Traviata and La Bohme are both sublime, but you can’t sing an aria from one during a scene from the other.

Although the terrain of the battlefield may have changed, the rules have not. War is nothing but legalized “extrajudicial killing.” A soldier does not require a court order to kill his enemy on the battlefield. Terrorists have chosen a battlefield that has no bounds, and those fighting against them should be similarly free of restraint. True, the Hague and Geneva Conventions speak about the humane treatment of soldiers. But those treaties explicitly apply to uniformed soldiers, not assassins who blend into a crowd. Those who openly and fairly assume the uniform of war are entitled to the protections of its humanitarian law. Terrorists, who try to gain advantage by blending in with a crowd they seek to murder are beyond the pale of the law. They forfeit the rights of a uniformed soldier, and may be killed where they stand

After the debate finished, I bumped into a woman, whom I had never met. I asked her what she thought of the discussion. She surprised me by saying that these fine points of law mean little to her. It turned out that she was not a lawyer at all, but had been invited anyway. On Sept. 11, 2001, her husband was at a conference, just like ours, in New York. His conference, however, was at the World Trade Center, and was scheduled to begin just about the time American Airlines Flight 11 slammed into the north tower. Much of her life was destroyed that day. One can excuse her for her lack of concern for the rights of terrorists. As she plaintively asked the participants, what about the rights of the victims of terror?

Indeed, if we think we can blur the line between terrorist and criminal, or even between terrorist and politician, we may be asked that question more and more frequently.

Marvin Kurz is honorary legal counsel of the League for Human Rights of B’nai Brith Canada. The views expressed are his own.

Judges tackling national-security learning curve As invasive laws test individual freedoms, Federal Court seeks outside expertise

COLIN FREEZE

Please Note: The address by the Honourable Simon Noel of the Federal Court of Canada, which is referred to in this article, was delivered at Osgoode Hall Law School’s Raoul Wallenberg International Human Rights Symposium on January 19, 2006 in New York City.

Magistrates from the Federal Court of Canada are quietly taking timeouts from the bench to attend informal seminars, where they are tutored about security and terrorism issues. Almost half of the court’s 40 judges, who are often called upon to evaluate national security threats and the need for spying, have taken breaks to get together and ask questions, over sandwiches, of everyone from American experts in wiretap laws to Canadian civil libertarians.

These judges say that as it gets harder to reconcile invasive laws with individual freedoms, they’re doing a lot more extracurricular consulting, meeting with at least five experts in the past year. “We’re trying to improve our ability to test the government’s case as time goes by,” Mr. Justice Simon Noel of Ottawa explained during a speech last month at a human-rights conference in New York.

“It’s absolutely clear that judges cannot become intelligence officers. . . . We have no intention of trying to become such officers,” he said. “But that doesn’t mean that we can’t become quite well-informed.” Judge Noel said he and his colleagues would be doing a “grave disservice” to Canada if they failed to become more intelligent about intelligence, given the complex issues they ponder. The Federal Court often scrutinizes secret spy information. Crown attorneys frequently come to the court with classified documents, attempting to show the judges the urgent need for wiretaps, or, in rare cases, to jail non-citizens as suspected terrorism threats.

Frequently, defence lawyers are barred from such hearings, wherein government motions almost always succeed. Human-rights groups have been sharply critical of secrecy that can surround such procedures. The judges acknowledge that these processes are difficult.Judge Noel insisted in his speech that he and his colleagues do “the very best we can” to challenge government evidence that’s presented in camera, adding “the court cannot simply throw up its hands and rubber-stamp the government’s position.” He said it’s vital that judges pose hard, knowledgeable questions and, to this end, they have been learning through their meetings with various experts.

Several American officials have been consulted over the past year, including a high-level government lawyer, James A. Baker, and a top judge, Colleen Kollar-Kotelly, both of whom work to uphold U.S. laws meant to rein in domestic spying. (The same officials have lately made headlines for opposing U.S. President George W. Bush’s controversial program of having U.S. spies eavesdrop on conversations without first obtaining warrants.)

The Canadian judges have also met a former Central Intelligence Agency inspector-general, who recalls his hour-long meeting warmly. “We had a good discussion,” said Fredrick Hitz, whose job as a watchdog had him keeping tabs on the CIA in the 1990s.In an interview, Mr. Hitz said he enjoyed travelling to Ottawa last summer to meet a dozen judges. “They were very polite. They didn’t ask a lot of questions.” Still, he said the stepped-up security measures that followed the 2001 terrorist attacks in the United States were very much on the judges’ minds. Some wondered whether the threat of terrorism should prompt them to be any more accepting of government arguments.

“The underlying question was, ‘Do we sublimate our underlying judge-like instincts?’ ” Mr. Hitz said. “My answer was, ‘No — increase them!’ ”

In a telephone interview, Mr. Hitz says he feels there have been many regrettable excesses in the war on terrorism led by the United States. “If nothing else, Canada can learn from our mistakes, which seem to be plenty,” he said. The judges are also consulting Canadian experts, including members of the Canadian Civil Liberties Association, which has long denounced government secrecy and certain anti-terrorism laws. They heard another perspective a few weeks ago, when they met with Martin Rudner, a professor who heads a research centre at Carleton University devoted to intelligence and security studies.

The subject was “what is al-Qaeda and how has it evolved,” Prof. Rudner said in an interview. “The idea was to give them the kind of background that I think they need.” The professor said Judge Noel approached him to arrange the seminar. While the judges wore casual clothing and munched sandwiches, he said, they were focused on their interest in terrorism issues.

“We had a very good philosophical discussion,” said Prof. Rudner, who emphasized that fighting terrorists demands different approaches than fighting criminals. “I feel one should commend the Federal Court, because in order to do justice, it needs to have a lot of knowledge.”

A joke that circulated in various forms during the Second World War imagined a confrontation between a Nazi and a Jew. “The Jews are the cause of all of the problems of the world ” says the Nazi. The Jew nods sagely and replies: “Yes, the Jews and the bicycle riders.” “Why the bicycle riders?” asks the incredulous Nazi. “Why the Jews?” his interlocutor replies.

IN HONOUR of World Press Freedom Day, Canadian Journalists for Free Expression (CJFE) held a panel discussion May 3 at the University of Toronto.Entitled ‘Drawing Controversy: The Muhammad Cartoons,’ the event addressed the backlash of militant Muslims against Danish caricatures of Islam’s most sacred prophet. The panel of media experts asked: “What have we learned? What does the controversy mean for a multi-cultural, ‘tolerant’ country such as Canada, and how this has affected free expression around the world?”

One key figure was conspicuous by his absence, according to CBC journalist Michael Enright. The feisty Ezra Levant, whose Western Standard magazine was the only high-profile Canadian publication to showcase the cartoons, was not on the panel. In a Sunday Edition commentary April 30, Enright said he found Levant’s absence highly problematic. While Levant, Enright observed, was considered a “high-octane troublemaker” by some for publishing the offending cartoons, “the action taken against him is far more offensive — and dangerous.”

The action Enright was referring to is still unfolding, as Levant awaits the next move of the Alberta Human Rights Commission. On February 14, Western Standard and the Jewish Free Press were charged with fomenting hatred by Calgary-based Syed B. Soharwardy, leader of the Islamic Supreme Council of Canada and founder of Muslims Against Terrorism. Claiming to be a “direct descendant” of Islam’s founder, Soharwardy denounced what he termed “extremely racist, hateful and insulting cartoons depicting Prophet Muhammad (peace be upon him) as a terrorist, violent and immoral person. This false depiction of my Prophet and my ancestor has publicized me and my family as someone related to a terrorist and the followers of terrorists. We are not terrorists. We are law abiding Canadians. These cartoons have sighted violence, hatred and discrimination against my family and me.”

In a March 2 followup, Soharwardy insisted that “both publishers knew that the worldwide Muslim community was very upset on the publications of these cartoons. They knew that it will be very offensive to Canadian/ Albertan Muslims, but they went ahead and published these cartoons in order to make a story. By publishing these caricatures, they publicly insulted all Canadian Muslims . . . This is clearly demonizing of our religion.”

Soharwardy’s complaint included several emails he said he had received. One of them urged him to “lighten up,” chiding: “What is wrong with you people? You are the most sour, excitable, unrealistic, humourless bunch I’ve ever seen.” However, several others offered less charitable sentiments, including: “Islam is hate that supports the censorship of communism and oppresses free speech”; “Your kind has burned the American flag, knocked down two office towers in New York . . . abuse[d] women in Algeria and practise[d] widespread male homosexuality;” and “Time for you too go back too any Islamic hellhole, where you can happily slaughter those that leave Islam or make fun of the meccan murderer. Muhammad was a bastard.”

“I am sure the two news magazine have inspired people to send these hateful messages to me,” Soharwardy wrote. Upon close examination, however, it is clear that some of the emails were dated before Western Standard’s publication of the cartoons.Soharwardy’s complaint “is a frivolous and vexatious abuse of process,” Levant responded in a March 30 letter. “It has no basis in fact or Canadian law. It is contrary to Canadian values of freedom of speech, freedom of the press and religious plurality, under which Canadians are free from compulsion to submit to religious edicts.”

Behind the complaint, he contended, was a more sinister intent — what he termed “an attempt to abuse the power of the state to chill discussion about subjects that are in the public interest. It is also an inappropriate combination of mosque and state, using a secular government agency to enforce a Muslim religious precept, namely the fundamentalist prohibition of the depiction of Muhammad.”

The conflict has sparked much spirited commentary in Canadian media. “During the years when my colleagues and I were labouring to create such commissions, we never imagined that they might ultimately be used against freedom of speech,” lamented Alan Borovoy, general counsel for the Canadian Civil Liberties Association, in the March 16 Calgary Herald. He added: “There should be no question of the right to publish the impugned cartoons . . . A free culture cannot protect people against material that hurts.”

“I still think Levant’s decision to reprint cartoons was provocative and publicity-seeking, rather than a reasoned stand for ethical journalism,” admonished Deborah Jones in a March 30 post to the Canadian Journalist blog. Nevertheless, she conceded, Levant “has a right to air his views, just as everyone else has the right to disagree with him, and the effort by some Muslims to punish the magazine’s views by using Alberta’s Human Rights Commission is outrageous. Much more outrageous is the commission’s complicity.”

“The human rights law under attack has many safeguards,” stressed Marvin Kurz, honorary legal counsel of the League for Human Rights of B’nai Brith Canada. Levant, he wrote in the Globe & Mail, “can argue that the cartoons may offend, even deeply, but they are legal. In saying this, he can point out that the cartoons may be blasphemous, but our hate speech laws are not aimed at blasphemy.”

“Alberta’s Muslim leaders could have done worse,” asserted CanWest columnist George Jonas. “Like imams in other places, they could have tried inciting riots. To their credit, they made no attempt to do so. But neither did they consider that in a secular democracy people trade freely in a marketplace of ideas, opinions, and beliefs.”

Instead, he opined, Levant’s opponents “turned to our society’s nearest kin to theocratic repression, the Holy Inquisition of the shibboleths of super-liberalism, the politburo of Canada’s multiculturalist-collectivist-feminist-environmentalist axis, where they struck gold. The Orwellian commissars of Alberta’s human rights directorate, instead of advising Soharwardy & Co, to go soak their heads in cold water, started processing their complaint.” CC.com caught up recently with a busy Levant, who phoned as he was leaving Toronto. Asked about his absence from the recent CJFE event, he said with characteristic bluntness: “I was not asked — which is no surprise to me.”

Many of CJFE’s directors, he said, are “people in high office” in mainstream media, who chose not to run the Danish cartoons. “These are the same people who enforced the censorship” of the images. Therefore, he said, “it would be a pretzelian feat of logic to think they would ask me.” The anger over the cartoons, he contended, had been heated to a frenzy by Machiavellian Islamists with political agendas. At first, he noted, “the cartoons went relatively unnoticed,” until protests were fomented by what he termed “agents provocateurs. Look at the countries where they happened, such as Syria and Iran. There’s no such thing as freedom of assembly there.”

The protests, he said, were “pure theatre, terrorist theatre.” He characterized the strategy behind them as “Tyranny 101: Have an external enemy for the masses to focus their anger on.” In response to Soharwardy’s contention that the Muhammad caricatures “have created unbearable stress, humiliation and insult for my family and me . . . [and] caused serious damage to the reputation of all Canadian Muslims,” Levant contended: “The test for civil rights is not based on the subjective offense taken by the thinnest-skinned” member of the community.

However, he added that devotees of any religions “absolutely” have the right to object to what they see as gratuitous and hurtful attacks on their beliefs and traditions. He also said they were free to object “peacefully, through letters to the editor, phoning talk shows, boycotts, getting politically active. These are healthy outlets for expression in a democratic society.” This was the approach, he pointed out, taken by Christians offended by things such as Piss Christ, The Last Temptation of Christ and The Da Vinci Code. “The response was not to burn down embassies” — or, Levant added, to commit murder, as a Muslim extremist did in the case of Dutch film-maker Theo Van Gogh. In Canada, said Levant, “we don’t slit throats.”

Soharwardy, he contended, “seeks not to rebut and debate — but to censor, Saudi-style.” Levant brusquely dismissed what he termed his opponent’s “junk lawsuit,” referring to the commission’s protracted semi-judicial process as an “abusive” exercise reminiscent of a “gulag” mentality. The commission, he insisted, was acting as “a politically correct enforcer — a destroyer and limiter of human rights.” Noting that the commission could possibly fine Western Standard, or force him to apologize, the publisher was adamant. Soharwardy, he said, “asks for us to submit, and renounce ourselves. If this man cannot convince me I’m wrong, I will never let him order me to say I’m wrong.”

Asked if he had ever had second thoughts about publishing the cartoons, Levant quickly responded: “Not for a second.”

A joke that circulated in various forms during the Second World War imagined a confrontation between a Nazi and a Jew. “The Jews are the cause of all of the problems of the world ” says the Nazi. The Jew nods sagely and replies: “Yes, the Jews and the bicycle riders.” “Why the bicycle riders?” asks the incredulous Nazi. “Why the Jews?” his interlocutor replies.

The joke, and its unspoken background of the Holocaust, illustrates the dangers of hate propaganda. It can put wild and dangerous ideas into the minds of otherwise rational people.

Rick Salutin’s recent article about the infamous hate tract, The Protocols of the Elders of Zion, claims that it’s an example of a new anti-Semitism; one that arises in response to the existence of Israel. He sees irony in the fact that Israel was formed in response to this new hatred. However, The Protocols deserves to be taken more seriously than that. It is far from new, either in style or substance, and its importance does not lie in benign irony. Rather, it has proven to be one of the most dangerous books ever written. Even now, more than 100 years since it was written, The Protocols has the power to prevent peace in the Middle East.

The Protocols was not born fully grown. It was incubated by a millennium of lethal propaganda and distrust, becoming the apotheosis of every calumny hurled against the Jews. The book was likely invented on behalf of the Russian czar’s secret police in the 1890’s. It purports to be the minutes of a secret plot by the world’s Jewish leaders to rule the world.

Not only was the work a forgery (no such meeting took place), it was plagiarism as well. The work was largely lifted from a French political satire that never mentioned Jews. The Protocols came to Germany in 1918, where it was introduced to Hitler, who made the the book’s claims a central theme in Nazi thought. They became, as Norman Cohen, the pre-eminent scholar of The Protocols described them, a “warrant for genocide.”

One would have thought the popularity of this book would have died with the liberation of Auschwitz. But after the war, it became the preserve of Klansmen and Hitler apologists alike. Recently, it has taken on a new life on the Internet. A web search on The Protocols producesclose to 14,000 references. By my rough estimate, almost half of those sites support the veracity of the book. Even more frightening, many of the sites claim to represent Islamic or Arabic points of view. Perhaps the most virulently anti-Semitic website on the net is called Radio Islam. The site not only offers The Protocols in 11 languages, but overtly incites Muslims to hate Jews and destroy Israel.

The theories of The Protocols now represent a mainstream view in the Middle East. There, The Protocols are regularly cited as authority for the proposition that the Jews are a criminal people that must be stopped. Last Ramadan, Egyptian television broadcast a 30-part dramatization of the book. This Ramadan, a Hezbollah television station in Lebanon broadcast a similar series. It presented the creation of Israel as part of a 2,000-year-old Jewish conspiracy to conquer the world through torture and ritual murder. The official newspaper of the Palestinian Authority, Al-Hayat Al-Jadidah, has regularly written about Jewish world conspiracies and the alleged truth of The Protocols.

This is important to all of us. Hate propaganda has shown itself to be a widely distorting force. The slavery of Africans could not been possible without centuries of their depiction as subhuman. The Rwandan genocide of Tutsis and moderate Hutus in the last decade was clearly spurred by their representation in Hutu media as “cockroaches” to be squashed.

In the Middle East, the hate represented by The Protocols stands as one of the major, albeit unspoken, obstacles to peace. The implacable terror group, Hamas, cites The Protocols in its own covenant as a justification for mass murder and the destruction of the Jewish state.

Recent informal peace initiatives show how desperate some people are for peace. For their part, Israelis will have to make painful compromises in a spirit of mutual acceptance. However, the ubiquity of The Protocols and similar anti-Semitic conspiracy theories in the Middle East shows that the right combination of compromises is not enough. One side cannot define the other through a hateful and historically genocidal lens. Unless Israel’s interlocutors in the Mideast are willing to ascribe the same amount of blame to the Jews as, say, the bicycle riders, there will never be peace in the Middle East.

Marvin

When it comes to curbing hate crimes, there’s good news and bad news. That’s bad news, says B’nai Brith’s MARVIN KURZ
– by Marvin Kurz

Sometimes an old joke has a timely moral.

Before sending her somewhat sheltered son off for his first day at school, Goldie hugged him and said: “Good luck, sweetie. Be good, my darling, and work hard. At lunch, honey pie, eat all your food and play nicely with the other children. Oh, my little man, I’m so proud of you!” That afternoon, when the boy returned home, Goldie greeted him with open arms and cried: “Oh, my honey, give me a hug, and tell me what you learned at school today.” “Well,” said the boy, “to start with, I learned that my name is Sam.”

The joke proves that labels count. We ignore that lesson at our peril. The most dangerous of all labels, those which defame entire vulnerable groups, are hate propaganda. Two recent developments in the law offer good news, but also new concerns for those dedicated to the elimination of this scourge. Six decades after the Holocaust, hate propaganda remains a deep concern for Canadians.

Just a few days ago, Parliament passed a private member’s bill adding sexual orientation to the list of groups protected under our existing hate-propaganda laws. Despite some concerns with the bill, the change was overdue. Our hate-propaganda laws emerged from the 1965 recommendations of a blue-ribbon committee of legal scholars, led by former McGill law school dean Maxwell Cohen. The Cohen Commission’s words ring as true today in regard to protecting the rights of gay Canadians as they did four decades ago on the protection of Jewish and African Canadians: “Canadians who are members of any identifiable group . . . are entitled to carry on their lives as Canadians without being victimized by the deliberate, vicious promotion of hatred against them. In a democratic society, freedom of speech does not mean the right to vilify . . .” Still, the new bill raised strong concerns on two counts: that it would breach freedoms of speech and religion. The freedom-of-speech arguments were convincingly answered by our highest court in a 1990 tril-

ogy of cases that included that of Alberta schoolteacher James Keegstra, when former chief justice Brian Dickson pithily stated: “In my view . . . the willful promotion of hatred . . . is entirely antithetical to our very system of freedom.”

The freedom-of-religion arguments have been more troubling. How to balance the rights of Canadians whose religious views oppose homosexuality with the rights of gays to be free from hate? We don’t want to jail people for reading from the Bible. That concern was largely resolved regarding the charge of willful promotion of hatred: A friendly amendment to the bill allows a defence if the expression of opinion was “based on a belief in a religious text.”

However, that amendment does not go far enough. As B’nai Brith argued in a submission to Parliament, the defence should also apply to the related charge of public incitement of hatred. To protect against frivolous prosecutions, the charge should require the consent of the attorney-general. Those simple but important changes should have been made to the bill before it passed. They should be made now, before it is proclaimed into law.

A problematic development comes in the Federal Court of Appeal decision dismissing Immigration Act proceedings against Leon Mugesera. The Canadian government wants to deport the Rwandan former politician and civil servant because of a speech he made 11 years ago that our government said was hate propaganda, advocating genocide against Tutsis. The court carefully reviewed the evidence and tried to offer a nuanced view.Speaking at a rally just over a year before the murders began, Mr. Mugesera referred to Tutsis as “cockroaches” and rhetorically asked why they were not exterminated. He warned, “. . . anyone whose neck you do not cut is the one who will cut your neck.” The court’s exoneration of Mr. Mugesera is troubling; even more so is its view that his speech is legal under Canadian criminal law.

If so, four decades of Canadian efforts to outlaw hate speech may have been in vain. The court has raised the bar so high, even Mr. Keegstra might not have been convicted under this interpretation of the criminal law. Let’s hope that this decision will be referred to the Supreme Court of Canada for review and clarification. As young Sam learned on his first day of school, words count. For those looking to eradicate hate propaganda, the struggle is far from over. However, like Sam, I take good news wherever I find it.

Marvin Kurz is national legal counsel of the League for Human Rights of B’nai Brith Canada.

Breaking News

KIRK MAKIN, Globe and Mail

Wednesday, April 09

4:31 AM

An Ontario judge has criticized the criminal-court system for permitting warring spouses to lodge assault charges as part of a strategy aimed at winning custody of their children.

Ontario Court Judge Bruce Pugsley expressed frustration that a spouse can cause family-law havoc, setting in motion a chain of events that force an estranged partner from the family home and subjecting children to “the disruptive force of a hand grenade.”

In the case before him, the judge was skeptical about the legitimacy of a bail order issued last month that effectively barred an Orangeville, Ont., woman from her family home and children, based on an allegation that she had punched her husband.Judge Pugsley revised the bail conditions, granting Alison Shaw 50-50 interim custody of her two-year-old and seven-year-old children on a rotating week-to-week basis.

He said that it is commonplace for the criminal-justice system to be manipulated by estranged spouses who claim to have been assaulted “no matter how remote the assault may be in time or, indeed, how trivial the contact. “Spouses of every walk of life – and often with completely unblemished prior character – are routinely detained for a formal bail hearing for such assaults,” Judge Pugsley said.Robert Rotenberg , a lawyer who has acted in many similar disputes, said the ruling has been a long time coming.”This is the judgment I’ve been waiting 10 years to see,” he said in an interview. “I have seen so many people stuck in bail courts needlessly – often for days – and parents who are not able to see their kids because of ridiculous bail conditions. And who suffers most? The children.”

Family lawyer Marvin Kurz said the judgment drives home how destructive assault charges and the ensuring bail conditions – usually decided by justices of the peace – can be. “A JP has as much business deciding interim custody of a child as a doctor has diagnosing a patient’s spouse,” he added. In the Orangeville case, Stephen Edward Shaw alleged that his wife punched him on Feb. 9, at a local Legion. He initially decided against pressing charges, but changed his mind a month later after seeking legal advice. “I can only hope that no licensed lawyer in this province would have advised the father that the fastest way to get custody and exclusive possession of the family home was to report the mother’s transgressions to the police,” Judge Pugsley observed in his ruling.

Ms. Shaw, 40, was jailed overnight and released on strict bail conditions. Her husband was given exclusive possession of the couple’s home and “instant custody” of their children, the judge said.She also was placed under a curfew, prohibited from using the Internet and required to live with her bail surety. Judge Pugsley noted that Mr. Shaw allowed his wife just 30 minutes with the children in the week following the order, which he said proved that Mr. Shaw was “concerned more with his power over his spouse than the best interests of their two young children.” The judge also remarked that police and prosecutors typically play into the problem by not being more discriminating about when charges are laid and pursued.

“These events have become routine and predictable in almost every allegation of spousal assault, such that there is presumably some policy guiding the police and the Crown attorney and forestalling professional discretion in all such matters.” Judge Pugsley stressed that domestic abuse is a genuine scourge that must be taken seriously, but that a uniform policy of instantly separating spouses from their children is not the answer. The parent who lays a charge is placed in a position of “immediate superiority” until the criminal charge is resolved, he said, which can take up to a year.

“Such rote treatment of all matters of domestic assault can lead, on the one hand, to concocted or exaggerated claims of criminal behaviour or, on the other hand, to innocent defendants pleading guilty at an early stage out of expediency or a shared desire with the complainant to start to rehabilitate the family.”

Judge Pugsley found several other disturbing aspects to the case, including the fact that Mr. Shaw had installed a device on the family computer to secretly track his wife’s e-mail. The judge expressed grave reservations about the invasion of her privacy, and said that Mr. Shaw’s actions appeared to suggest a premeditated plan to “set up” his wife.

WES KELLER, Orangeville Citizen

In what is likely to be seen as a landmark case, Ontario Court Justice Bruce Pugsley has found that the criminal court system was misused by a father to gain custody of his children in a marriage that was “inevitably” doomed.In a 10-page written judgment, Judge Pugsley found that although Alison Shaw may have slapped her husband, Stephen Edward Shaw, during a Feb. 9 dance at the Shelburne Royal Canadian Legion, Mr. Shaw initially didn’t want to press charges and waited at least a month before he sought legal advice and then reported the alleged assault to the Shelburne Police Service.

Following a no-tolerance policy in domestic violence cases, the police promptly arrested Mrs. Shaw and held her in custody overnight. She was released on $5,000 bail the following day, but denied access to the matrimonial home or her two children, aged 5 and 2, as conditions of her bail.”Inexplicably, although charged with what was in effect a one-punch bar fight over a month before, where the target was her spouse, the mother was arrested and detained in custody for a bail hearing, the next day,” the judge wrote. He found that Mrs. Shaw, 40, had no prior criminal record.

“The presumption, as I understand it, is that the lowest form of available release appropriate to the charge and the defendant should be applied – on a range from a promise to appear to a fullblown bail hearing,” he continued.”There is nothing on the record that I have seen in the family law proceeding – including the father’s affidavits and the exhibits attached thereto – that would have prevented the release of Ms. Shaw from the station house, at the highest by the officer in charge, on an undertaking with terms.”Prior to the incident, Mr. Shaw suspected his wife of having an affair. In the fall of 2007, he secretly installed a device in the couple’s home computer for the purpose of tracking Mrs. Shaw’s e-mail correspondence. Although the e-mails did not uncover evidence of an affair, Judge Pugsley found that letters to her female friend were critical of Mr. Shaw in vile language, and indicative of a troubled marriage.

While Mrs. Shaw was on bail, Mr. Shaw succeeded in obtaining an interim custody order. Judge Pugsley found that the family court matter of custody “came before the court with staggering rapidity.”Mr. Shaw moved for an order without notice on 12 March 2008, the day after the arrest of Ms. Shaw. Justice (Douglas) Maund granted an order, triggering a speedy review of the order made on only part of the factual story.”

He said Judge Maund’s order anticipated that the father would grant the mother “immediate and generous” time with the children. She was, however, allowed only one 30-minute visit on March 16.Judge Pugsley found that Mr. Shaw was a jealous and controlling husband, and that the criminal court had made a custody ruling that rightly should have been within the purview of the family court. He also noted that in such cases the criminal justice process takes no account of the best interests of children.He was also highly critical of the husband for secretly taping his wife’s on-line chats, and cited a similar-case finding by provincial Justice Stanley Sherr: “Surreptitious recording to telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties worrying about whether the other is secretly taping them….”

Apart from the conflict in the Shaws’ marriage, Judge Pugsley found that the couple had shared equally their resources and time to care for the children of the marriage.In his judgment, he varied the bail order such that Mr. and Mrs. Shaw will have 50-50 custody of the children. As they are not allowed contact with each other under the bail order, the exchanges of the children are to be at the Shelburne police office.

The Pugsley ruling was featured prominently in Wednesday’s Globe and Mail, where justice reporter Kirk Makin quoted family law practitioners welcoming it.Robert Rotenberg , a Toronto lawyer who has acted in many similar disputes, said the ruling has been a long time coming.”This is the judgment I’ve been waiting 10 years to see,” he said in an interview. “I have seen so many people stuck in bail courts needlessly – often for days – and parents who are not able to see their kids because of ridiculous bail conditions. And who suffers most? The children.”

Family lawyer Marvin Kurz was quoted as saying the judgment drives home how destructive assault charges and the ensuing bail conditions – usually decided by justices of the peace – can be. “A JP has as much business deciding interim custody of a child as a doctor has diagnosing a patient’s spouse.”

There is to be a continuation of the family law hearing on June 11.

SARAH HAMPSON, Globe and Mail
April 24, 2008 at 9:48 AM EDT

The charges were eventually dropped, and his criminal record expunged, but the action had the desired effect. He was traumatized. She had exacted her revenge.

They had been married for 20 years when she discovered, through an e-mail account, that he was having an affair.So she hit him with the atomic bomb for warring spouses – false allegations of abuse – the proliferation of which alarms professionals in the divorce industry. It is, in essence, an abuse itself, not only of the charged spouse but also of the criminal justice system.

The father doesn’t want his name used for fear his children would be identified. He is a well-known Canadian actor and he is still trying to repair the damage. His ex had involved their son, then 8, in the allegations of physical violence, saying that he not only witnessed the encounter between them, but that he had been beaten on several occasions, too. The Crown attorney eventually dropped all of the charges, but not until the divorce proceedings had been finalized.

His experience is just one of several that readers of this column have brought to me, complete with legal documentation, and they suggest why many lawyers saw the judgment by the Ontario Court’s Mr. Justice Bruce Pugsley a few weeks ago as a welcome acknowledgment that some discrimination is needed about when charges of alleged assault are made and pursued.

In Judge Pugsley’s courtroom in Orangeville, Ont., the case involved Stephen Edward Shaw, who had laid assault charges against his wife, Alison. He had waited a month to make the accusation after she allegedly punched him in a tavern. She was arrested, and bail conditions immediately barred her from the family home and stripped her of custodial rights of their two children. He then tried to establish the new arrangement as the status quo upon which permanent custody should be determined.

In his judgment, Judge Pugsley restored the mother’s access to her children, noting how “rote treatment of all matters of domestic assault can lead … to concocted or exaggerated claims of criminal behaviour.”A separation involving allegations of abuse is complex. “In many ways, it’s dealing with Rashomon, there are so many different sides to the story,” says family lawyer Marvin Kurz , invoking the famous work of fiction about differing perceptions of an event. “Abuse is the hot chili pepper on a meal that is pretty indigestible anyway.”

Still, because no one wants to minimize the gravity of possible domestic abuse, there’s a zero tolerance approach from law enforcement officials.”It’s charge first, think later,” says Linda Meldrum, a family lawyer in Toronto who has handled several cases involving false allegations of abuse. “We have erred too far on the side of caution,” she warns, adding that in an acrimonious divorce proceeding, the ease with which one partner can accuse the other allows him or her “to hijack the whole family law proceeding.”

Abuse charges are an effective way to evict the other spouse from the matrimonial home and get sole custody of the children. They can also be a handy way to express the roiling mix of emotions that come with domestic discord.Earlier this month in Toronto , Noellee Mowatt was jailed to ensure she would testify against her boyfriend after laying charges of abuse against him. She later testified that she tried to withdraw charges because she had made up the allegations “to teach him a lesson.”

And while fathers’ rights activists like to make the point that more men than women are charged, anecdotal reports from lawyers – there are no official statistics on false charges of domestic abuse – suggest that men are as likely to lay false charges as women.

“It’s a complete perversion of the whole criminal justice system,” says Robert Rotenberg , a lawyer who has handled several abuse charges laid against wives and husbands. To make matters worse, he says, the criminal justice system is underfunded, which means it can take months, even years, before the charges are dropped. “It’s absolutely scandalous to bring in zero tolerance – arrest everyone, charge everyone, hold them in the bail system – and then not properly fund it. If you’re going to force people to go through the sledgehammer process of the criminal justice system, at least give them the dignity of being able to go through it rapidly, ” Mr. Rotenberg points out.

Even when the accused party is eventually exonerated, the damage is significant.The Canadian actor mentioned earlier describes the process as “completely humiliating.” When he was brought to the police station to be charged, he was fingerprinted, and for his mug shot, “I was slotted between a drug dealer and a hooker. My ex couldn’t have done anything lower. It was all about control.”

He had to live with the charges for two years. In therapy with his children, it emerged that his son felt he had to support his mother in her allegations. He got many well-known Canadian entertainment personalities to write character references. It was agreed that all charges would be dropped, once their divorce was granted, a further indication of how criminal and family law are often inappropriately intertwined.He now sees his children regularly (his son is almost 14 and his daughter 16) although they don’t talk about the accusations. “The best I can do is keep putting out unconditional love to the kids,” he says, his voice breaking. “It was the most horrible, horrible thing to have happened.”

Hugo Aguirre of Ottawa says he was the victim of false allegations of abuse, including sexual abuse, of his daughter. He was later exonerated in court and eventually won unsupervised access to his daughter Saturday until Wednesday every week, plus holidays, birthdays and activities. “I did not have a bad experience with the judges,” he says. “Some radical activists, here in Ottawa , do not like [it] when … I talk about the judges in good terms because I am not a ‘good example’ of the biased judicial system.”

Still, the consequences of what he calls “an abuse of power” cause many men, including himself, to suffer depression, loss of income, friends and social status. His experience pushed him to start up a fathers’ support group. His advice? Fight to clear your name.”It’s like the rug has been swept out from under them,” says Riki Kwinta, a social worker in Toronto who often deals with spouses in the divorce process who have been falsely accused of assault. “It’s the stuff of TV and movies, but they are unable to turn it off. They are living it. As adults, we feel that we have control over our lives. In essence, that control has been stripped away when someone is falsely accused. Their life is upside down. The devastation is huge,” she says.

Of course, the worst part is that the people who are most affected by such allegations are the children. That’s the greatest crime. No warring parent ever thinks about those they purport to be protecting.

shampson@globeandmail.com

By Colin Perkel, The Canadian Press

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OAKVILLE, Ont. – Parts of Canada’s human-rights act are a punitive and gross infringement on free expression that have no place in a democratic country that prides itself on freedom, a tribunal heard Wednesday.The legislation, which targets hate on the Internet, has put Canada among a “sorry group of nations” that stifle dissent for political reasons, its critics told the hearing.But supporters, along with the attorney general of Canada, argued the Canadian Human Rights Act is necessary to protect vulnerable minorities.

The Canadian Human Rights Tribunal is trying to decide whether Toronto resident Marc Lemire is responsible for material posted on an electronic bulletin board frequented by far-right users.The postings mocked Jews, blacks, Italians, gays and others.”The law should not concern itself with jokes and trivia,” lawyer Barbara Kulaszka, who represents Lemire, said in closing arguments.”Jokes hurt, too,” countered Athanasios Hadjis, who is chairing the tribunal.”This is a law that has gone mad,” Kulaszka replied. “There is no balance in this law whatsoever.”

The Canadian Human Rights Commission is asking Hadjis to issue a cease and desist order against Lemire and fine him about $6,000.Lemire is arguing that sections of the decades-old act under which the complaint against him was launched are unconstitutional.Section 13, initially aimed at telephone hate messages and upheld by the Supreme Court of Canada, was extended in 2001 to cover Internet communications.Lawyer Steven Skurka, acting for the Friends of the Simon Wiesenthal Centre for Holocaust Studies, argued the case is not about suppression of legitimate dissent.

The act targets only the most “poisoned” forms of expression that have no redeeming value and cause enduring harm to its victims and society at large, he said.”We support the right to offend and to be offensive,” Skurka said. “(But) hate propaganda does nothing to advance freedom of expression.”Lemire’s freedomsite.org website, started in 1995, became the subject of a hearing after Ottawa lawyer Richard Warman complained that postings on the site promoted hatred and could subject a group to contempt.Lemire, 32, shut down the message board on Jan. 1, 2004 – even before he received the complaint – but the case has continued to wind its way through tribunal hearings.

That proves, his lawyers said, that legislation intended to be remedial has become punitive and the process abusive.Critics of the act also maintained the tribunal has never dismissed a complaint on which it has ruled.Earlier in the hearing, Hadjis mused the legislation may be outmoded in an Internet age in which almost anyone can post messages and any complaint can spawn a lengthy and cumbersome process .But Marvin Kurz, speaking for the Jewish human-rights group B’nai Brith, said the Internet has not changed the harm caused by hate propaganda. Nor has it minimized the need to protect minorities from exposure to contempt and hatred, he said.

Paul Fromm, of the Canadian Association of Free Expression, called the legislation “excessive.”Those who have fallen afoul of Section 13 – Warman has filed most of the complaints – have been poor uneducated whites who hold far right-wing views and lack sophistication in making their opinions heard, Fromm told the hearing.”We should all have an equal right to express ourselves,” Fromm argued. “That is what the Internet has enabled us to do.”Canada is acting like China by “slowly gagging” dissent, he said.

“Any regime that condemns jokes is pretty far gone.”Critics have also warned that mainstream media outlets, some of whom have decried the legislation, could easily become ensnared by the act .Simon Fothergill, lawyer for the federal government, urged Hadjis to focus on the merits of the complaint and to stay away from weighing in on the legislation, while a lawyer for the rights commission said the act captures only the “most extreme forms of speech.”

Hadjis reserved his decision.

KIRK MAKIN

Globe and Mail Update

September 17, 2008

TORONTO — Behind every genocide and pogrom in history lies a trail of racially intolerant screeds that helped distort the way a minority group was viewed, a human rights tribunal hearing was told Wednesday.“The road to Auschwitz was paved with hate propaganda, Mein Kampf and the Protocols of the Elders of Zion,” said Marvin Kutz – a lawyer for B’nai Brith Canada – on the final day of a hearing into alleged hate material posted on an Internet message board operated by defendant Marc Lemire.

Mr. Lemire and his supporters have asked tribunal commissioner Athansios Hadjis to strike down Section 13 of the Human Rights Act, which permits a complainant to launch a human rights proceeding against anyone has allegedly promoted contempt or hate towards an identifiable group.They claim that the section infringes the Charter right to free speech, chilling open debate and leaving individuals vulnerable to harsh punishment simply for participating in heated discussion.

However, Mr. Kurz argued that Section 13 is a vital weapon in the Internet age, when minorities can be mocked, belittled and threatened instantaneously with a single key-stroke.“It isn’t a matter of scare-mongering to say that the Holocaust wasn’t a unique event in history,” Mr. Kurz said. “Allowing the spread of hate is what permits the next level to occur. Society needs to deal with it in a civil context first, so that it doesn’t get to a criminal context.”

Steven Skurka, a lawyer for the Simon Wiesenthal Centre for Holocaust Studies and the Canadian Jewish Congress, rejected the idea that Section 13 stifles honest debate: “Only the most virulent and poisoned kind of expression” gets caught by the section, Mr. Skurka said.“We support the right to offend and the right to be offensive,” Mr. Skurka said. He said that Section 13 only comes into play after healthy debate has been manipulated into the active promotion of hatred toward a vulnerable group.“Our ultimate submission is that hate propaganda does nothing to advance freedom of expression and is antithetical to the values of Canadian society,” Mr. Skurka said.

A lawyer for the federal Justice Department, Simon Fothergill, endorsed the notion that hate speech can have a tangibly negative effect on those who hear it.“Hate speech does, indeed, cause crime – and crime of a very serious nature,” he said.Mr. Fothergill said that it is absurd to suggest that it impossible to debate major historical events without running the risk of offending a particular religion or cultural group: “There’s so much one could say without ever getting close to that line,” he said.He also laughed off the notion that Internet messages boards will become impossible to operate if Section 13 complaints are allowed to continue. Webmasters or operators can place disclaimers on their site and apologize for offensive material that inadvertently gets on their site, he said.

“If you are operating a website that deals with [offensive] subject matter … you might want to take extra precautions,” he added.Barbara Kulaszka, a lawyer for Mr. Lemire, told the tribunal that the mainstream media paid no attention to unfairness of Section 13 complaints until Macleans magazine columnist Mark Steyn was targeted by a Muslim group earlier this year.“Every religion is going to start using it,” she warned. “Just look at the first Muslim complaint in 30 years. Everyone went nuts. The media woke up, and said: ‘It isn’t just Ernst Zundel and his creepy right-wingers being attacked. They are going to come after us.’

“You’re going to be caught in the cross-hairs,” she cautioned.An intervenor who supports Mr. Lemire – Paul Fromm – told Mr. Hadjis that virtually all of those targeted in Section 13 complaints have been modestly educated, “lower-class” individuals who tended to phrase objections to immigrants or particular groups in crude, hyperbolic “bar talk.”“Not everyone can speak like an Osgoode Hall-educated lawyer, with nuances and exceptions, and so on,” Mr. Fromm said.
He also denounced a CHRC lawyer for saying earlier this week that racial jokes ought to be fair game for Section 13 complaints: “My response is that to condemn jokes is going pretty far down the road to the old Soviet Union,” he said.Mr. Fromm also criticized the fact that 100 per cent of the Section 13 complaints referred to tribunals by the Canadian Human Rights Commission have been successful. “A 100 per cent success rate?” he said. “That doesn’t happen this side of North Korea.

However, Mr. Kurz said that Mr. Fromm’s “scurrilous attack on the tribunals’ integrity” was misplaced. Rather, the CHRC success rate shows that it only targets material that contains “incredibly awful” elements of hatred, Mr. Kurz said.Mr. Kurz also argued that a recent complaint by Muslim groups against was dismissed by the Commission not because it had been cowed by a public and media backlash, but because it was without merit.

Mr. Hadjis has reserved his ruling.