ANNUAL MEETING 2002

Senator Beaudoin Receives Tarnopolsky Award

Senator Gérald-A. Beaudoin is the 2002 recipient of the Walter S. Tarnopolsky Award for Human Rights. Senator Beaudoin is a former President of the Canadian Section of the ICJ, a longtime member of Council, and a regular participant on the Executive Committee.

The Award was presented to Senator Beaudoin by the Hon. Mr. Justice Ian Binnie of the Supreme Court of Canada, following the panel discussion that was a joint effort of ICJ Canada and the Canadian Judges' Forum. The presentation of the award prompted a standing ovation by the audience.

Senator Beaudoin subsequently addressed the Annual Meeting, where he spoke feelingly of his close association with Walter Tarnopolsky, initially as teaching colleagues giving bilingual seminars together at the University of Ottawa Law School. When Walter Tarnopolsky was appointed founding Director of the Law School's Human Rights Centre in 1981, Gérald Beaudoin served as Associate Director. Later, they co-edited the first edition of The Canadian Charter of Rights and Freedoms: A Commentary. Senator Beaudoin went on to consider the longstanding tradition of an independent Bar and Bench in Canadian history and the importance of the Charter to the lives of Canadians.

Senator Beaudoin's speech can be read on our web site www.icjcanada.org and copies are also available from the Ottawa office.

Annual Meeting in London
The Annual Meeting of the International Commission of Jurists (Canadian Section) was held on Monday August 12, 2002, at the London Convention Centre in London, Ontario. The business meeting was preceded by a joint ICJ-Canadian Judges' Forum panel on "The Role of the Judiciary in Times of Crisis." The program featured the Rt. Hon. Lord (Gareth) Williams of Mostyn, Q.C., Government Leader in the British House of Lords, who was invited by ICJ Canada. Lord Williams is a distinguished barrister, former head of the U.K. Bar Council, and former Attorney General of England and Wales.

Following the address by Tarnopolsky recipient Hon. Gérald-A. Beaudoin, the President, Professor Ed Ratushny, Q.C., welcomed Canadian Section members. About twenty-five people were present, including the Chief Justice and two other Justices of the Supreme Court of Canada. The Chief Justices of Alberta, Saskatchewan, Quebec, and Nova Scotia were also present.

Professor Ratushny announced the establishment of the Tarnopolsky Medal Board that will be on display at the Ottawa Law School, news that was very well received. In his President's Report, he summarized the year's activities, many of which are described elsewhere in the newsletter.

The President also announced a major initiative to establish a presence for ICJ Canada in our law schools. The objective is to have one professor in every faculty to inform colleagues and students about our organization and to work with local ICJ Canada members. Dr. Daniel Gervais of the Ottawa Law School has undertaken to co-ordinate this initiative at the national level.

Professor Ratushny also stressed the need for more activities organized at the local level: "There is an impressive ICJ Canada community of judges, lawyers, and academics in every major city, whose professional lives would be enriched by greater involvement in activities related to the goals of the International Commission of Jurists. Law students must also be included since they are the lifeblood of the future of ICJ Canada."

The Honourable Michèle Rivet, Chair of the International Projects committee, delivered a report on the current regional project in the Southeastern Adriatic countries. The substance of this report is contained in the article following by Me Caroline Meilleur. Financial and membership matters were presented by Brian A. Crane, Q.C., and the report of the Nominating Committee was delivered by its Chair, the Honourable Michèle Rivet.

The Nominating Committee recommended the re-appointment of a number of Council Members and the appointment of two new members. They are Anne Mactavish, Chairperson, Canadian Human Rights Tribunal, and Professor Daniel Gervais, Ottawa Law School.

The Nominating Committee also reported on the need to rejuvenate the Council with more new members. Justice Binnie called for further discussion of this recommendation from the floor. However, the President advised that this recommendation together with a review of the By-laws and related administrative changes, is already being undertaken. He suggested that further discussion await more specific proposals from the Executive.

The minutes of the Annual Meeting are included with this newsletter.

Council Meeting
A short meeting of Council followed the Annual Meeting. The following officers were named for the year 2002-2003:

President: Ed Ratushny, Q.C.

Vice-Presidents:

• Brian A. Crane, Q.C. (Ontario)
• Hon. Danielle Grenier (Quebec)
• David Matas (Prairie Region)
• Dr. A.J. McClean (British Columbia)
• Dr. Moira McConnell (Atlantic Region)

Secretary-Treasurer:Charles T. Hackland

ICJ CANADA NEWS

Zimbabwe Visitors to Ottawa
Early this summer, ICJ Canada hosted two visitors to Ottawa in co-operation with the Canadian Bar Association.

On May 22, former Justice of the Supreme Court of Zimbabwe Nicholas McNally spoke to a group of students, lawyers, and judges and then attended a dinner on his behalf. Mr. McNally spoke of the further deterioration of the independence of the judiciary and the breakdown of the rule of law in that country. Prior to his appointment as a judge, he had been an outspoken critic of the Rhodesian Front Government of Ian Smith. He subsequently served as Chairman of the National Unifying Force, seeking to bridge the transition from minority to majority rule, from Rhodesia to Zimbabwe.

On June 6, ICJ members and others met with David Coltart, a human rights activist lawyer and opposition justice critic in the Parliament of Zimbabwe. He described the current human rights abuses as a political crisis that threatens even further instability for the entire region. In particular, the March presidential elections were highly irregular, and a petition has been brought before the Supreme Court to declare them invalid. Mr. Coltart is seeking international legal and human rights observers for the trial which is to occur this fall.

Ironically, Sternford Moyo, the President of the Zimbabwean Law Society (who visited Canada in the summer of 2001) and Wilbert Mapombere, the Law Society's secretary, were arrested and held in custody during the time of Mr. Coltart's visit.

During the summer of 2001, ICJ Canada also hosted the visit of the Honourable Anthony Gubbay, who had been forced to resign as Chief Justice of Zimbabwe.

"Another" L'Heureux-Dubé Dinner
ICJ Canada members from Ottawa and Montreal held a dinner on the occasion of the retirement of Madam Justice Claire L'Heureux-Dubé from the Supreme Court of Canada and in recognition of her contribution as President of the International Commission of Jurists. The dinner was held in Ottawa on June 12.

In view of the many formal dinners held and scheduled to honour her, this one took the form of a "seminar." There were no speeches, apart from an introductory presentation by the Honourable Senator Gérald Beaudoin, which highlighted some of her prominent judicial discussions and other public contributions. Guests then engaged in "Socratic dialogue" with the Guest of Honour, asking about the early nurturing of her respect for human rights, prominent events in her career, and the challenges she envisions for the future. Of course, she responded with animation, enlightening and stimulating the guests to join her in facing those challenges.

On behalf of ICJ Canada, Brad Smith presented her with an eighteenth-century Jacques Bellin map of Quebec City, where she will take up residence in her retirement.

Corruption in the Judiciary of Kenya
Two members of ICJ Canada served on an international panel which reported it was "shocked and dismayed by the widespread allegations of corruption in the Kenya Judiciary."

Justice Robert Sharpe of the Ontario Court of Appeal and Professor Ed Ratushny, Q.C. of the Ottawa Law School were members of the "Advisory Panel of Eminent Commonwealth Experts" established by the Constitution of Kenyan Review Commission. The Panel was mandated to advise the Commission on constitutional reforms regarding the Kenyan Judiciary. With the support of the Chief Justice of Kenya, the Commission contracted ICJ Kenya to co-ordinate the project. Other members were Justice George Kanyeihamba of the Supreme Court of Uganda, Justice Damian Lubuva of the Court of Appeal of Tanzania, and Justice Yvonne Mokgoro of the Constitutional Court of South Africa.

The Panel's recommendations included:

• Measures to establish and entrench the integrity and independence of the judiciary;
• Establishment of a Supreme Court to exercise general appellate jurisdiction as the final court of appeal;
• Adoption of an objective and transparent judicial appointment process under the authority of a restructured Judicial Services Commission;
• Establishment of an effective complaint and removal process in relation to judicial misconduct;
• Adoption of a comprehensive Code of Conduct for judges, magistrates, and judicial officers;
• Improvement of access to justice, including enhanced legal aid and efficiency in the administration of justice;
• Interim measures to receive complaints about judicial misconduct.

The comprehensive 62-page Kenya Judiciary Advisory Committee Report is available on the ICJ Canada web site or from the Ottawa office.

The Report was completed in twelve days, "a remarkable achievement," according to ICJ Canada President Ed Ratushny, "considering that we also visited some rural areas, heard submissions, and had never worked together before. The contribution of Justice Sharpe was particularly impressive. In addition to his substantive contributions, he took most of the responsibility for writing and gave the report a coherence and consistency that were not easy to achieve in a short time."

Seminar Hosted by Oslers
At the initiative of Ron Atkey, the Toronto office of Oslers hosted a seminar to hear Justice Robert Sharpe speak of his experience serving on a Panel to recommend reforms for the Judiciary of Kenya (please see the previous article). More than twenty judges and lawyers attended the meeting held on July 9th.

By way of background, Justice Sharpe explained that upon gaining independence from Britain in 1963, Kenyans pushed for a concentration of power in the Parliament and President. Unfortunately, this led to Kenya becoming a one-party state and to the abolition of many constitutional rights. Today, civil society in Kenya, as well as external bodies, are seeking the reinstitution of certain democratic principles in the constitution, such as the independence of the judiciary.

In conducting their investigation of the judiciary, Justice Sharpe and his colleagues on the Panel engaged in widespread consultation with many groups, including the Law Society of Kenya, Kenyan judges, United Nations representatives, ICJ representatives, and other community groups. In the end they discovered a serious lack of public confidence in the judiciary. The major complaints were the incompetence and corruption of judges. They included that bribery was prevalent even among judges at the highest level and that political influence from high levels of government was common. Other unacceptable practices included delivering unreasonable judgments and failing to report cases for selfish reasons.

Disturbed by their findings, the Panel issued a candid report with strong measures to address these problems. The Panel report has been very well received in Kenya and has been the subject of great public debate. The only criticisms have come from Kenya's President and Chief Justice, who equated the report with gossip and uninformed foreign meddling.

It was obvious to all in attendance that Justice Sharpe was personally moved by his experience. He was particularly touched by the idealism of the ICJ representatives and young Kenyan lawyers regarding the state of their judiciary. He stressed the importance of upholding ideals of judicial independence, efficiency, and accountability, which as Canadians we take for granted. Furthermore, he noted that Canadians should be proud that our views on such matters are sought out internationally.

The discussion that followed included the need to require constitutional reform as a condition of foreign aid and investment in Africa. Possible reforms to the judicial appointments process in Canada were also debated.

ICJ Canada is grateful to Justice Sharpe for sharing his insights with other members in the Toronto area and to Ron Atkey and his colleagues, Brian Morgan and Larry Lowenstein, for organizing this function.

Mission to Tunisia Aborted
An ICJ mission to Tunisia scheduled for June 16-22 did not proceed when on June 15 an ICJ delegation member was refused entry into the country. ICJ Canada member Justice Alice Desjardins of the Federal Court of Canada had agreed to serve on the delegation, together with David Ellman, a barrister from Great Britain, and Louise Doswald-Beck, ICJ Secretary-General. However, when Justice Desjardins arrived in Tunis, she was not permitted to enter the country and had to return to Canada.

The purpose of the mission was to examine the independence of the judiciary and the functioning of the legal profession in Tunisia. ICJ missions, as a matter of practice, meet with representatives of all actors involved in the administration of justice, including government, members of the legal professions, and civil society. According to Doswald-Beck, the refoulement was exceptional: "To my knowledge, it is the first time in decades that the ICJ has been refused entry on arrival."

ICJ missions are often initiated as a result of reports of human rights abuses, particularly in relation to judges and lawyers. The International Red Cross recently was denied access for the inspection of prisons in Tunisia.

Current ICJ policy is not to seek permission to enter a country but to inform the country in question that a mission will take place, providing full details of the mission. This prevents governments from refusing permission and experience has shown that government authorities do give appointments and provide information once the mission is actually in the country.

When the Tunisian ambassador in Geneva was officially informed of this mission, he expressed strong reservations to Mr. Ellman's participation on the basis that he is Jewish and allegedly biased against Arab states. However, ICJ provided ample documentation to rebut this claim. Although the Ambassador stated that the mission would not be able to meet with government officials, no indication was ever given that the mission would be denied entry.

Hon. Peter Cory to Northern Ireland
Longtime Canadian Section member and former Supreme Court of Canada Justice Peter deC. Cory has accepted an important role in northern Ireland.

For many years, the families of the victims and human rights organizations such as the Committee on the Administration of Justice have been seeking public inquiries into the unsolved murders of Patrick Finacune and Rosemary Nelson, two lawyers killed in controversial circumstances in 1989 and 1999. (See ICJ Canada Newsletter, June 1999) The CAJ has also been active in supporting the families of Robert Hamill, a Roman Catholic beaten to death by a mob, and Billy Wright, a Protestant murdered while in prison, both in 1997. The Honourable Peter Cory will inquire into these and four other deaths described as "poltical assassinations" by Jeff Sallott in the Globe and Mail on May 30, 2002. Last year, the British and Irish governments agreed to appoint a judge of international stature to review those cases with a view to determining whether a full-scale public inquiry with judicial powers is required. It is an honour for ICJ Canada to have one of its most distinguished members selected for this sensitive and significant task.

WWW.ICJCANADA.ORG
Thanks to the efforts of our Webmaster, Professor Ken Norman, the basic framework of our site is established with links to ICJ Geneva and selected human rights organizations.

Our challenge now is to infuse the site with interesting and current information related to the goals of the ICJ, namely Judicial Independence, the Rule of Law, and Human Rights. If you have an interesting article or report to share with ICJ Canada members, please communicate directly with the Webmaster at ken.norman@usask.ca.

Our language policy is to publish documents in both official languages whenever possible. When they are available in only one language, they may be published in only that language. The Newsletter will continue to be published in both languages.

We have also adopted a policy of publishing news items on the web site as soon as they are available, even though they will be published in the Newsletter. This will enhance the "currency" of the site. Once the next Newsletter is published, such items will be removed from the "News" category of the site but continue to be available through the "Newsletter" category.

Please add www.icjcanada.org to your "Favorites" and check in regularly for information that goes beyond your daily diet of judging, lawyering, preparing lectures, or writing term papers. And please forward items of interest. Professor Norman may not publish everything he receives, but every contribution toward enriching our web site will be most welcome.

ICJ List-Serve
We are trying to establish a number of list-serves that will allow us to be in touch more efficiently with those of our members who prefer this mode of communication. However, many of our e-mail addresses are out of date. If you would like to be included in the ICJ address book, could you please e-mail a blank message to patw@cba.org so we can be sure of having your current address?

INTERNATIONAL PROJECTS

Project to Support the Independence and Impartiality of Judges in the Southeastern Adriatic Countries - Me Caroline Meilleur, Project Director

The Project to Support the Independence and Impartiality of Judges in the Southeastern Adriatic Countries, funded by the Canadian International Development Agency (CIDA), started its activities last April and will be carried out over a period of 24 months. This regional program will follow up work already begun in both Croatia and Serbia, allow for similar exchanges with Bosnia-Herzegovina and Macedonia, and, finally, create exchanges among Canadian judges and judges from these different countries.

The key to the success of such a project lies in the involvement of Canadian judges, through their actions or work in Canada as well as their interventions in Europe. In order to launch its activities and discuss upcoming activities, the International Projects Committee of the ICJ, chaired by Judge Michèle Rivet, created an Advisory Committee, comprised of more than 40 judges from all provinces and from all jurisdictions, which held its first meeting May 11th in Montreal. Participants included International ICJ President Justice Claire L'Heureux-Dubé, Chief Justice of Alberta Catherine Fraser, newly appointed Chief Justice of Quebec, Michel Robert, Chief Justice Benjamin Hewak of the Manitoba Court of Queen's Bench, Chief Justice of Supreme Court of Prince Edward Island Armand Desroches, and Canadian Section Vice-president for Quebec, Justice Danielle Grenier. The focus of this working session was to convey information about the project and about the current situation of the judiciary in Croatia, Serbia and Montenegro, Macedonia and Bosnia Herzegovina. The expertise of the 40 participants will ensure that the ICJ delivers a program of the highest quality.

In April 2002, a delegation composed of Justice Bill Kelly, Supreme Court of Nova Scotia, Judge Bernard Grenier, Quebec Court and Me Caroline Meilleur, Project Director, traveled to Serbia and Montenegro to:

• Present the project to the key actors involved in the judiciary;
• Assess the work of the key players in order to evaluate their role, their work, their expertise, their responsibilities and their impact on the judiciary; and
• Proceed to final selection of participants for the June seminar in Montreal.

The delegation met with more than 80 judges from all jurisdictions coming from Serbia and Montenegro, principal NGOs, and International Organizations. With the collaboration of judges from Serbia, chief justices, and law professors, the delegation proceeded to the selection of 16 participants for the intensive two-week seminar in Canada. The selection process was difficult due to the high quality of the candidates.

The intensive two-week seminar took place from June 1st to 15th in Montreal. The participants had the opportunity to attend general lectures concerning the concepts of judicial independence and impartiality, practical study cases, and interactive discussions. Speakers at this seminar included Chief Justice of Quebec Michel Robert, Associate Chief Justice André Deslongchamps of the Superior Court of Quebec, two former Chief Justices of the Superior Court of Quebec, the Honourable Lawrence A. Poitras and the Honourable Alan B. Gold, and Professor Brettel Dawson from the National Judicial Institute.

In Ottawa, participants also met with Madam Justice Claire L'Heureux-Dubé and Madam Justice Louise Arbour of the Supreme Court of Canada and with Senator Gérald Beaudoin. The ICJ executive hosted a lunch at Gowling Lafleur Henderson, which included a tour of Gowlings conducted by ICJ Ontario Vice-President Brian Crane.

Judges from Serbia and Montenegro were enthusiastic about the seminar and were eager to lead similar discussions in their own republics. The upcoming activities in the region look very promising.

In late June, a delegation went to Bosnia Herzegovina, Macedonia and Serbia to develop a better understanding of the situation in these countries, to strengthen the relationship with key judges, and to establish contacts who will help us to identify judges able to participate in the project for a 24-month period. Due to the very delicate situation of the judiciary in these countries, CIDA asked that the project proceed very carefully and strongly suggested having this exploratory mission. This delegation was composed of Judge Michèle Rivet, President of the Quebec Human Rights Tribunal and Chair of the Canadian Section's International Projects Committee, Justice Kenneth Lysyk, of the Supreme Court of British Columbia, Chief Justice Armand Desroches of the Supreme Court of PEI, Justice Ginette Piché of the Superior Court of Quebec and Me Caroline Meilleur, Project Director.

Our mission to Bosnia Herzegovina and Macedonia was fruitful despite the complexity of the situation. As a result of various recent political changes in the region and the transition towards democracy, political and judicial systems are undergoing major upheavals. All of the countries that we visited are in the process of establishing substantial legislative and structural reforms and are dealing with numerous international organizations and donors.

Notwithstanding these impediments, ICJ Canada had the opportunity to discuss at length the actual situation of the judiciary in both countries and to exchange views with the legal community and with international donors also involved with judicial matters in the region. During our meetings with various organizations and individuals, we were able to assess the project's feasibility, timing, uniqueness, and relevance on an ongoing basis.

NEWS FROM GENEVA - Allan McChesney, External Affairs Representative of the Canadian Section

INTERNATIONAL TRIAL OBSERVANCE AND FACT-FINDING MISSIONS: Since the 1950s, the ICJ has been sending experts to observe trials where concerns existed about the integrity of the proceedings. As part of its mandate to protect the independence of judges and lawyers, most ICJ trial observation occurs when a judge or lawyer is under prosecution or administrative sanction on charges arising from the exercise of professional duties. The ICJ also conducts fact-finding missions as part of its human rights monitoring activities. Such missions are conducted in countries in which there are prima facie concerns regarding the proper functioning of the administration of justice.

In June 2002, the ICJ published a Trial Observation Manual addressing the observance of hearings from initial stages to conclusion. To facilitate the work of the ICJ and others, this Manual has been made available online, from the Trial Observers page in the Get Involved section of the ICJ Geneva website .

The ICJ wants to expand its pool of experts who could serve as trial observers and/or members of fact-finding missions. To be added to the ICJ database of experts, one can complete an online application at the ICJ Geneva website. In practice, Canadian experts are asked to participate in such missions through the Canadian Section, rather than directly by Geneva. To avoid duplication or delay, if you register online and are subsequently contacted by Geneva about a possible mission, we ask you to contact the President of the Canadian Section through our office in Ottawa.

ICJ RULE OF LAW ACTIVITIES IN RECENT MONTHS: The following are examples of situations in which the ICJ (Geneva) has intervened with statements, reports and/or observer missions. (a) Turkey: 27 lawyers are being tried on charges stemming from the lawyers' representation of political prisoners during court proceedings. (b) Nigeria: A Sharia court of appeal upheld the sentence to death by stoning of a woman for engaging in sexual relations outside of marriage which have resulted in a child. (c) A Syrian lawyer and founding member of the Human Rights Association was sentenced by the Syrian Supreme State Security Court to five years' imprisonment on politically motivated charges, including attempting to change the constitution by illegal means. (d) On September 18, former Zimbabwe High Court Judge Fergus Blackie was arrested on accusations of "defeating or obstructing the course of justice." The charges were said to arise from his decision to overturn a fraud conviction without having consulted a judicial colleague who had heard the case with him. The context and circumstances of the arrest strongly point to a political motive in the government's actions. Earlier in 2002, Justice Blackie came under severe Government criticism for imposing a three-month prison sentence (later overturned) for contempt of court on Justice Minister Chinamasa, who had failed to appear in court to respond to contempt charges relating to his criticism of the High Court.

ATTACKS ON JUSTICE: In August, the ICJ published online "Attacks on Justice: A Global Report on the Independence of Judges and Lawyers." This publication evaluates law and practice in relation to the independence of judges and lawyers in 47 countries. It catalogues the cases of at least 315 jurists who suffered reprisals for carrying out their professional duties.

US OBJECTIONS TO THE ICC: The ICJ has expressed alarm about US efforts to undermine the integrity of the treaty (Rome Statute) establishing the International Criminal Court (ICC) and to weaken the effectiveness of the ICC. For instance, in June/July, the US threatened to veto the extension of the United Nations peacekeeping mission in Bosnia (UNMBIH). The ICJ called "unfounded" US fears that its peacekeepers will face politically motivated prosecutions, since the ICC can exercise its jurisdiction only after remedies in national courts are exhausted. The US has sought immunity for its personnel from the jurisdiction of the ICC. The ICJ says that this position "undermines one of the most fundamental principles of the rule of law: that there can be no immunity for anyone, under any circumstances, for horrific crimes such as genocide, war crimes and crimes against humanity." In August, the ICJ, as part of the Coalition for the International Criminal Court (CICC) condemned the United States for pressing states to sign bilateral agreements that would preclude them from transferring US nationals to the ICC. The US has tried to convince other countries to grant immunity for US nationals from the newly created ICC by threatening to withdraw military aid.

CONFERENCE ON THE NEW UK HUMAN RIGHTS ACT: Britain's national section of the ICJ, JUSTICE, co-organized an Annual Human Rights Law Conference, with law publisher Sweet Maxwell. This event has become the central forum for analysing law under the recent UK Human Rights Act. This year's (4th) conference took place on Friday 25 October 2002. Those with an academic or other interest could consult the website of JUSTICE.

IMMEDIATE EMPLOYMENT VACANCY: ICJ DEPUTY SECRETARY-GENERAL: As of mid-September, the ICJ is seeking a Deputy Secretary-General to be based at the International Secretariat in Geneva. The Deputy works closely with the Secretary-General over a range of legal, institutional, financial and administrative matters. To be successful, a candidate must have both a strong managerial background and good general knowledge of international relations and human rights law.

NEWS OF OUR MEMBERS
Dr. Moira McConnell, ICJ Canada Vice-President for the Atlantic Region, has finished a two-year secondment from Dalhousie Law School to the World Maritime University (WMU), based in Malmö, Sweden. WMU is an international university created and governed by a UN specialized agency, the International Maritime Organization, as part of its capacity-building and technical cooperation mission. Dr. McConnell was teaching and carrying out research on sustainable development, marine ecosystem protection, international governance and negotiation. She notes that her time working in this unique multicultural and multidisciplinary (it is not a law school and students are drawn primarily from the shipping industry) economic development sector, confirmed her view that education and the development of an independent and fair legal and administrative system are critical to ensuring human security and meeting the challenge of sustainable development in all sectors.