[Bloquez l'empire!] Charging Bush for War Crimes ...

[No One is Illegal Montreal]

[From the Georgia Straight in Vancouver. -- Jaggi.]

Bush publication ban lifted

http://www.straight.com/content.cfm?id=13646

By matthew burrows
Publish Date: 20-Oct-2005

A Vancouver lawyer has won a procedural victory in her attempt to prosecute 
U.S. President George W. Bush under the Criminal Code.

Gail Davidson, cofounder of an international group of jurists called Lawyers 
Against the War, expressed her delight on October 18 following the lifting of a 
publication ban on court proceedings against the U.S. president.

"It's great news, but really they had no choice," Davidson told the Georgia 
Straight.

The Kitsilano lawyer got the ball rolling against Bush as soon as he set foot 
on Canadian soil for his November 30, 2004, visit. As a private citizen, she 
charged him with seven counts of counselling, aiding, and abetting torture at 
Abu Ghraib prison in Iraq and at Cuba's Guantanamo Bay naval base. She had her 
charges accepted by a justice of the peace in Vancouver Provincial Court.

Bush faces prison time if the case goes to trial and he is found guilty.

On December 6, 2004, Davidson was at Provincial Court to fix a date for the 
process hearing. However, Provincial Court Judge William Kitchen promptly 
ordered a Straight reporter and other observers from the courtroom and 
cancelled the charges, declaring them a "nullity". The meeting was deemed to be 
"in-camera" and Kitchen concluded immediately that Bush had diplomatic immunity 
during his two-day visit to Canada because he was a head of state.

Davidson subsequently appealed Kitchen's decision and B.C. Supreme Court 
Justice Deborah Satanove directed the Crown to produce submissions on the 
publication bans by October 14. The Crown consented to the termination of Judge 
Kitchen's Provincial Court ban and an interim ban made by B.C. Supreme Court 
Justice Patrick Dohm.

"We are next in [B.C. Supreme] court at 10 a.m. on November 25 for the Crown to 
argue that the case is moot and that the court not hear any argument on the 
substantive issue as to whether George Bush is protected from prosecution under 
the laws of Canada by what Judge Kitchen called a "concept of diplomatic 
immunity,"" Davidson wrote in an October 18 e-mail to the Straight.

In an earlier interview with the Straight, Davidson said "nullity" means the 
charges never legally existed, even though they were approved by a justice of 
the peace on November 30, 2004. Crown counsel spokesperson Stan Lowe told the 
Straight that the upcoming November 25 court proceedings - he erroneously 
referred to the case as "Regina versus Bush" - will focus on two issues.

"First of all, the court has to determine whether it has jurisdiction in the 
Supreme Court to hear the matter," Lowe said. "It's a review, an application by 
Gail Davidson arising out of a Provincial Court decision. Secondly, part of the 
issue is whether they [LAW] can proceed in their application without the 
permission of the Attorney General of Canada."

Canadian Attorney General Irwin Cotler must give his consent within eight days 
of laying charges for the case to continue. The Crown is now raising a 
preliminary objection that B.C. Supreme Court does not have jurisdiction to 
adjudicate on Davidson's appeal because the issues raised are no longer moot. 
"It's great," Davidson said. "Now the Crown's argument is moving from mute to 
moot."

As a result of the lifting of the publication ban, the Straight has obtained a 
copy of the Provincial Court transcript from December 6, 2004. It sheds new 
light on some of the finer details of why Davidson and LAW laid the charges.

"It's not a frivolously filed application," Davidson said last year in court. 
"The application was filed on the 30th [of November] because Mr. Bush was in 
Canada, thereby giving Canada the jurisdiction to prosecute under 269(1) [of 
the Criminal Code of Canada], the torture section."

Deputy regional Crown counsel Marion Paruk stated the Bush couldn't be charged 
because he is a head of state: "This immunity flows from both the common law, 
international common law, Canadian common law, as well as by Canadian statute."

In her response - outlining why immunity does not apply to Bush - Davidson was 
hurried up by Kitchen.

"I can give you a few minutes, not too many. It seems to be a slam dunk to me. 
I'm not going to get into a long argument about it. It seems to be trite 
criminal law."

Davidson pointed out that Canada signed the 1987 Convention Against Torture. As 
a result, she said, "amendments to the Criminal Code were made to allow Canada 
to expand its jurisdiction to prosecute crimes of torture."

Addressing directly the Crown's question of immunity, Davidson referred to the 
Rome Statute, defining torture as a war crime and barring immunity for torture 
and other war crimes.

"Well, I'm afraid I don't agree with you," Kitchen said.