Criminal Law 

This commentary was first published in The Lawyers Weekly on November 16, 2007, page 17

Ronald Smith of Red Deer, Alberta is slated to die the same way that Stanley Faulder of Jasper, Alberta did in 1999: by lethal injection. It can be a cruel death, leaving people gasping for air and writhing in pain while jailhouse “doctors” try to hit a vein with the poisoned needle. Observers at the 1994 execution of killer John Wayne Gacey in Illinois told reporters that the person who inserted the tube in his arm appeared to have “never taken I.V. 101”.

The two Canadians also share another trait: brutality. Faulder murdered a 75 year old Texas woman by crushing her skull with a blackjack and then stabbing her with a kitchen knife, while Smith killed two young Native Americans in Montana by shooting them with a sawed-off shotgun at point blank range in the back of the head. Two cold Canadians whose confessions left little doubt as to the identity of the killers and horror of the crimes.

And yet with all the similarities, Canada has responded in starkly different ways. In Faulder’s case, the government turned interventionist, petitioning the U.S. courts and requesting clemency from the governor of Texas. By contrast, in Smith’s case, the government has turned isolationist, refusing to intervene in a judicial system that shares the same rule of law approach as Canada.

Senator Jerahmiel Grafstein (Lib.) has recently introduced into Parliament a proposed amendment to the anti-terrorism provisions of the Criminal Code, Bill S-210, which is now before the Senate's Legal and Constitutional Affairs Committee. The Bill is a short and straightforward one, which provides:

Section 83.01 of the Criminal Code is amended by adding the following after subsection (1.1):

(1.2) For greater certainty, a suicide bombing comes within paragraphs (a) and (b) of the definition "terrorist activity" in subsection (1).

Although the point seems an obvious one, and, indeed, has been objected to by a number of MP's and senators on the grounds that it defines an act that is already covered by the Code's definition of "terrorist activity", the proposed amendment has merit. Criminal law has a public education and labelling function which will be advanced by this definitional statement. In addition, given that Canadian courts often look to international law and its institutional pronouncements on questions of interpretation, the amendment is necessary in order to avoid the interpretive pitfalls into which international human rights and United Nations bodies have fallen.

My brief to the Senate committee is attached.
Download SuicideBombingS210.pdf

Originally published in the National Post on Wednesday, July 16, 2008

The announcement that an indictment is pending against Sudanese President Omar al-Bashir has been greeted with enthusiasm in Western capitals. But international justice can be fickle. If the new international criminal court (ICC) doesn't show more responsibility than have similar institutions, the tables may soon turn on those applauding the loudest.

First the good news: The ruling clique in Sudan deserves all the condemnation the world can muster. The crimes perpetrated by the Khartoum government and the Janjaweed militia, which acts as its surrogate in the Darfur region, seem to beg for precisely this type of international prosecution. If, as ICC prosecutor Luis Moreno-Ocampo has said, "the decision to start the genocide was taken by Bashir personally," no rational observer should shed a tear over this particular defendant.

This commentary was published in the Toronto Star on September 30, 2008.

The recent conviction of a young offender in the Toronto terrorism case has raised concerns that his conviction was a form of guilt by association. The Crown's star witness, Mubin Shaikh, was quick to tell reporters that he did not believe the young man was a terrorist. That said, those who read Justice John R. Sproat's 98-page decision will know that the legal issue is not quite so simple.

The young man was charged under a new offence created by the Anti-Terrorism Act enacted in December 2001 in the wake of 9/11. It provides a broad offence of participating in the activities of a terrorist group. To be guilty of this offence, the Crown must prove that the accused knew he was participating or contributing to a terrorist group and was doing so for the purpose of enhancing the ability of the group to facilitate or carry out a terrorist activity.

This commentary was first published on the Jurist website on October 31, 2008.

George W. Bush’s term as president is coming to an end, and he has little to show by way of meting out justice for the terrorist attacks of 9/11. Perhaps this is why his administration seems so desperate to score a victory on the judicial battleground of the military commissions. That its target is Omar Khadr, a child soldier at the time of the alleged offenses, makes the spectacle all the more pathetic to the observer, and tragic for Khadr.

The charges against Khadr include “murder in violation of the laws of war,” and providing material support to the enemy. The most serious allegation against him is that on July 27, 2002 in Afghanistan, he threw a grenade that killed US soldier Sergeant Christopher Speer. Indeed, until a few months ago, the official story went unchallenged in the public domain. Thanks to an inadvertent government leak, we have since learned of evidence supporting at least two alternate scenarios, namely that another combatant might have thrown the grenade or that Sgt. Speer was killed by “friendly fire.”