Lecture 13 (review) Tuesday, August 13, 2013
- One small story to leave you with a written truth:
o Latin maxim: the truth is great (magna est veritas)
o Victorian poem about how while the lie is already rotting, the truth will prevail…it
has that quality ultimately if you can hang in
o Life and politics are all very sound-bitish…short-term, quick fix, everyone wants
to know everything right away…but politicians find out that covering up, stone
walling, obfuscating, pure lying never works and they never learn!
o Nixon found that out as president when he was tossed for his Watergate and
Daniel ELsberg shenanigans
o In Canada, the sponsorship scandal that sank the Liberals
o No doubt that in due course, Harper’s shenangians will come out. His ministers
are always having problems, voting regulations of the last election is up for
grabs, things will come out
o Take on some skepticism, always listen respectfully to whatever’s being thrown in
front of you (CNN, when politician is speaking to you), but never believe it until
you’re satisfied that truth is emerging from that statement/policy/invitation/etc.
o For example, here’s one case we never dealt with:
If you thought Omar Khadr and Mahar Arar and Amalki were problematic
cases, Abusfyan AbdelRazig, a Canadian citizen sued the government for
$27 million. From a lawyer’s standpoint, it’s interesting.
He sued personally Lawrence Canon, former minister of foreign affairs.
That’s extremely big. It’s not everyday a minister gets sued personally,
But you can see why Abdelrazig and his lawyers thought that was
He was originally Sudanese-born, lived in Ottawa…but in 2003, while in
Sudan for personal reasons, was arrested, interrogated, alleges he was
tortured by Sudanese officials
After a yaear, officials determined that they had nothing on him. 2004,
arranging a flight to send him to Canada, and suddenly the airlines refuse
dhim passage. A senior official in CSIS had interceded with the airlines,
telling them not to carry him, he was extremely dangerous.
At that time, CSIS had put out disinformation that called him an Al Qaeda
operative…the government position is that Abdelrazig was in cahoots in
some way with a person that the americans had been holding (Abu
Zubayda, an Al Qaeda leader). On the basis of tortured testimony,
concluded that Abdelrazig was likely connecte Documents show that there were memos suggesting all along that the
Americans wanted to whisk him allt he way to Guantanamo, which they
couldn’t do while he was in Canada.
Documents released a couple of years ago—CSIS documents marked
secret—he ought to hav been allowed to come home. At one point,
suggested he was on the UN no fly list…UN Security Council 1267
(terrorist watch list)…but anyway, it was a false suggestion that he
couldn’t be taken home because he was on the list, because the actual
UN resolution states that if the home country will take him back, there’s
no problem flying him home
Right away, there’s an obfuscation going on.
There was some discord between our Foreign Affairs folks and
CSIS/security industry. DEFATE says, “We wer enot informed of his arrest
until November 2003 when Sudanese authorities told us he was detained
at the request of the government of Canada. See attached memo”. The
attached memo probably said a bunch of allegations about how he was a
Eventually, Abdelrazig has sued the government because they had
nothing on him, he was never charged with any criminal offence.
Eventually, CSIS cleared him, RCMP cleared him, Sudanese authorities
cleared him, but when he went to be returne, Canada intervened and he
spent almost 5 years in Sudan (at least two of them in prison, a year and
a half in Canadian embassy compound in Khartoum). What the hell?
CSIS said “it had no current substantial information regarding Abdelrazig”.
RCMP delivered similar letter. But he’s still on the no-fly list when he
shouldn’t be. And because he’s on the list, Canadian terrorist-related
legislation provides that he’s unable to work! Nightmare.
Abdelrazig maintains that he was tortured. Canada, in the suit, rejects the
claim outright. (How do they know that?) CSIS operatives interviewed him
and said he’d never see Montreal again…hm, interesting…
He showed abdominal scars to a Canadian politician who visited him, but
in a phone cross-examination by a justice department l\wyer here, she
alleged tht they were self-inflicted, religious mutilations… shows a lot
about the quality of the government response…
Eventually, when all the intelligence authorities admitted they had nothing
on him, the Canadian government said, “okay, if you can get a flight, we’ll
get an emergency passport.” Various people including Irwin Cotler (former
minister of justice here) arranged a flight…then our government turned
around and said, “no, because he’s a national security risk”. Playing
around with one of your own citizens !Unreasonable, unacceptable! Canon maid those statements (he’s a security risk so no) out of nowhere!
What did he know, why didn’t he disclose or give some reason?
Federal court in 2009 ordered government to give him passport and fliht
home. Eventually rCMP officer was sent and he flew home. But he was
still on the no-fly list, the pretence that he should be there was maintained
and he couldn’t find work! Interesting.
Because of that personal intervension by Canon, he was sued for $11
million. The case continues…
It’s going to be a very interesting case to follow
But it’s an example of whom do you believe, what do you believe?
CSIS was in there before the government, and one hand isn’t telling the
other what’s going on. A little information sharing might hve cleared the
**The attorney-general of the country (Canon and Nicholson occupy dual-
role as minister of justice and the attorney-general)—senior criminal law
and law policy advisor to the government! They’re obligated to provide the
best advice possible no matter what the political consequences.
Ask yourself what advice Canon received rom the justice department,
what went on.
- EXAM REVIEW!
o Will be marked out of 100, counts as 50%
o Two parts
1) series of short-answer questions, general knowledge of the course and
2) choice from selection of mini-essays
o Not meant to be legalistic in terms of acts and stuff…there are certain acts you
should be aware of, but not being aasked to remember date and name of every
case alluded to. It’s great to throw them in your essay, but not ht emost important
- Review questions
o After William the Conquerer, the Norman duke who descended on England on
1066 and inaugurated a couple of centuries of innovations and political-legal
consolidations that did what for Britain? At that time, disparate group of tribes or
sects. What was the central notion or concept that the normans hoped to
consolidate the criminal law administration and centralized the administration?
**WHAT WAS tHE CENTRAL CONCEPT, giving centrality to the nature of
criminal law as the Britons had previously not undertood it? • THE KING’S PEACE. The notion that from henceforward, when
you commit offence against someone, it’s not only act against
them (individual), it’s crime against the state, the king.
• Originally, it was more towards the king/queen…this tightened up
the notion of what the offence was. Had wider rammifications.
Over the centuries, king became less important than the state
itself..crime against the state
• Useful in centralizing the administration. Everyone knew what was
what. There was a certain universality of the application fo criminal
o Details of the court system. What were two streams of court activity/court
Misdemeanor and felony.
• Felonies were the more serious (murder, treason, etc.)
• Misdemeanors were more minor (still in the US called the same
o Two levels of judiciary—what were they? Both appointed from London…
Justice of the Peace (JP) and the judges.
• JPs presided over the quarterly sessions (four per year), they had
jurisdicition over all the misdemeanors
• Judges appointed for the felonies. They rode out liket he circuit
courts of the US, to all the shires and counties…they generally
only appeared in your neighbourhood to sit once a year. Their
sittings called the assizes.
o Ahead of English civil war, number of stunning reforms with legislation,
ameliorated relation between the state and citizens. What piece of legislation was
responsible for bringing more distance between judiciary and the monarch, non-
The Act of Settlement! In 1701.
• Provided that the judges that were appointed were done so not at
the pleasure of the king/queen, but on the basis of good behavior
(appointed for life)
• The moanrchof the day could not at their own whim kick them out
• That element of control was improved o What was the unique function of the JPs? What did they represent in the early
days of criminal justice in England?
They served warrants, acted as the police…
The JP was the link between the victim/citizen and the Crown! You would
approach a JP to proceed with a criminal case, lay a charge.
o Early on, before trial may be proceeded with, there was a process and a group of
people that considred the charges. What wehre they called?
The Grand Jury!
• They were upstanding local people (nobles or gentry, landed
people), they determined if there was sufficient evidence for trial
• Extreme cases- -might employ torture to extract confessions or
o Did the grand jury survive in the English legal system after the middle ages?
No, it got removed
The grand jury became the petit jury, the jury that we now know
o What about Canada? Do we still have the grand jury?
No. As of the 1970s, grand jury was taken out of the process
o But what do we have that has taken its place, still determines the viability of a
trial/charges that the Crown presents to the court? In serious cases?
Preliminary hearing, sometimes called preliminary inquiry
It determines not guilt or innocence but whether there is sufficient
evidence for the matter going to trial
The US still has grand juries in many jurisdictions…
o The fucntions of the jury as we classically know them now and the judge in
his/her role…what famous case exemplified that relationship? It took place in
The Bushell’s Case, William Penn was the principal defendant. The jury
nullification doctrine grew out of that—it was a case in which Penn the
defendant asked the jruy to vote with their conscience as opposed to the
strict letter of the law. The result: after the matter whent to an appeal to
the chief justice in London, it was determined classically that the province
of the judge is to interpret the law and administer the court. The jury’s
fucniton ois not to be tampered with, it’s to interpret the facts. That’s what
the case is very important for.
o What does the Magna Carta represent, when was it, who does it involve? 1215
ON the fields of Runnymede, who was asked to sign it? King John.
What was the motivation behind it, what gave rise to it? War taxation,
taking money from the nobles, they wanted to guarantee that they
couldn’t seize property.
• It’s called scutage.
• The term for receiving money/taxes from the nobles in lieu of
contributing men at arms to King John’s ineffectual, costly,
disastrous foreign wars in Ireland and Normandy
• The nobles eventually said no, held him up at London, told him to
sign the charter which had 60 provisions
• Driven by a power rebalancing…forever determined the fac ttha
the king was not above the law.
• But the charter in essence set out a lot of provisions that you’d
find on our Charter of Rights and Freedoms. Provided for speedy
trial, habeus corpus (shouldn’t be held without just reason for your
detention), method of appeal, fair and honest appointment and
procedure without delay…several provisions that smacked of
modern rights although they weren’t really the issue
o What was some method that local citizens or villagers would have employed to
bring law and order itno their communities at 17 and 18 century England?
The Watch, raising the hue an