HOORAY FOR THE RULE OF LAW - George Jonas

Air-India has been both a tragedy and a triumph for
the Canadian justice system. A tragedy, obviously,
because a heinous crime of international terrorism
remains unresolved. But also a triumph, because a
thoughtful and courageous jurist has reaffirmed that
in this country, judicial decisions aren't based on the weight of the crime
but on the weight of the
evidence.

Most people see only the tragedy of the Air-India trial. No wonder. The
organs responsible for Canada's
security emerged from court looking like the Keystone Kops. A prosecution
based on dubious evidence
achieved little beyond embarrassing itself. The killers of 331 airline
passengers and crew got away with
murder. If the two accused, Ajaib Singh Bagri and Ripudaman Singh Malik,
had done it, the system
failed their victims. If they hadn't, it failed them. After two decades and
the expenditure of millions,
the legal process could find no one to condemn or exonerate, for a mere
acquittal is no exoneration. A
case that began with a bang off the Irish coast 20 years ago ended in a
B.C. courtroom with a whimper.

The triumph looks small in comparison. It's just a line of 21 words in B.C.
Supreme Court Justice Ian
Bruce Josephson's judgment. "Justice is not achieved," the judge points
out, "if persons are convicted
on anything less than the requisite standard of proof beyond a reasonable
doubt."

This line summarizes the best in our legal tradition. It expresses a
principle old enough to appear new.
It should be engraved over the entrance of every public building, because
we've been continually
departing from it. Any law-, policy- or opinion-maker who has ever been
tempted to put standard of
proof and procedural fairness second to some social purpose should have
Judge Josephson's line
appear in moving type on his Windows screen saver.

Here are two mantras to be recited five times a day by tribunals,
regulators, legislators, academics,
lobbyists, journalists -- even crime victims. One: "Standard of proof and
procedural fairness trump any
policy goal, no matter how legitimate or fashionable, including national
security, ethnic harmony or
the empowerment of women." Two: "Stick a foot from under the blanket of the
rule of law, Virginia,
and feel the icy air outside."

The world of the rule of law (ROL) is warm and cozy. Outside the rule of
law (OTROL), there's nothing
but darkness and the gnashing of teeth. OTROL is the postal code for the
re-education camps of China,
the training grounds of the Taliban and the cellars of the Gestapo.

In the borderland between ROL and OTROL, there's a region reserved for
national security, social
engineering, public hygiene and special or emergency legislation, such as
America's Patriot Act or
Canada's Immigration and Refugee Protection Act (IRPA). Call this zone JBC
for James Bond Country.

JBC is the address for various administrative tribunals, human rights
commissions, security agencies
and similar bodies that have the authority to operate a little -- or a lot
-- outside the ordinary
safeguards of the law. The 007s of real life may not have a licence to
kill, but their special powers
range from inspectors who can enter premises without a warrant (under
Canada's gun laws, for
instance) all the way to Guantanamo Bay.

IRPA is in JBC. It enables the authorities to arrest, hold without bail and
eventually deport any
non-citizen by satisfying one Federal Court judge, on evidence that need
not be revealed to the suspect
and his lawyer, at a hearing that neither the suspect nor his lawyer is
entitled to attend, that the
detainee is a security risk.

Under IRPA, a person can be detained, held and deported on the mere say-so
of the folks who brought
you the Air-India trial. The Keystone Kops are issued a 007 licence. The
untested word of the same
authorities whose best efforts fell "markedly short" (in Judge Josephson's
words) of the requisite
standards for conviction in a criminal court carries the day.

The say-so of the Keystone Kops cancels out fundamental Charter rights,
such as Section 9 ("Everyone
has the right not to be arbitrarily detained or imprisoned"); or Section 10
(a) ("Everyone has the right
on arrest or detention ... to be informed promptly of the reasons
therefor"); or Section 10 (c)
("Everyone has the right on arrest or detention ... to have the validity of
the detention determined by
way of habeas corpus and to be released if the detention is not lawful.")

What has this great victory of the Keystone Kops over the Constitution
netted Canada so far? A
lieutenant of Osama bin Laden? Conspirators plotting to blow up the next
Air-India plane? No. It netted
a 65-year-old pamphleteer named Ernst Zundel.

Zundel was unsuccessfully prosecuted in Canada for denying the Holocaust --
barmy, but no crime in
this country -- until IRPA finally got him a one-way ticket back to his
native Germany. Gotcha! It was a
great catch, worthy of the architects of the Air-India investigation.

Lobby groups such as B'nai Brith consider compromising the rule of law for
catching Zundel a smart
deal. It impresses me as a dumb deal. I feel better protected by Judge
Josephson's standards.

мй National Post 2005

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HOORAY FOR THE RULE OF LAW by George Jonas National Post March 21, 2005

HOORAY FOR THE RULE OF LAW
by George Jonas
National Post
March 21, 2005