While writing a speech to welcome a new judge on behalf of the Law Society of British Columbia recently, I stumbled across a tweet by a sitting member of Parliament named Shannon Stubbs. Stubbs tweeted her outrage about the appointment of John Norris to the Federal Court of Canada last February. She said: “The Prime Minister has appointed Omar Khadr’s lawyer as a federal judge. This is a Man who defended a confessed murderer and terrorist. This is an utter embarrassment for Canada and the Canadian judicial system.”
I only found it because an old friend posted it on Facebook, saying: “Corruption at its finest” — the implication being that Norris had been a political appointment unworthy of being a judge because he happened to have once represented a so-called “confessed murderer and terrorist.”
Although I try to stay out of “feeding the trolls” on social media, I’m starting to think it’s more important than ever for lawyers to enter the fray when someone has their facts wrong and either doesn’t know or doesn’t care. By staying silent when politicians, critics and even our friends get the justice system wrong, we’re acquiescing to the dissemination of fake news and encouraging dog-whistle politics by those who want to inflame debate rather than engage in it.
What’s alarming about Stubbs’ tweet is her lack of understanding about what lawyers actually do for a living and how judges are appointed in Canada. Maybe she wanted to link Khadr with the newly appointed judge to embarrass the current government. Maybe she was “appealing to her base” to curry favour with voters. Either way, her tweet was “fake news.”
If you read Norris’ biography, you’ll see he was an inspired choice. In addition to practising law, he was an adjunct professor at the University of Toronto Faculty of Law and taught criminal law, evidence, constitutional law, national security law and legal ethics. He was assistant editor of the Canadian Rights Reporter and a director of the Canadian Council of Criminal Defence Lawyers. In his long legal career, he acted for interveners in appeals before the Supreme Court of Canada, but in 2008, under Stephen Harper’s government, he was appointed to the roster of Special Advocates for Security Certificate Proceedings under the Immigration and Refugee Protection Act, which brought him, for a short time, to his most famous client, Omar Kahdr.
Khadr was not a “terrorist” but a child soldier not unlike the children stolen from the villages of Nigeria, Somalia, Sudan or the Congo to fight for the Lord’s Resistance Army, Boko Haram or other terrorist organizations. In Khadr’s case, it was his father who recruited and brainwashed his 15-year-old son into serving with al-Qaida in Afghanistan. Any parent will tell you that 15-year-olds are still children. They are easily influenced and manipulated and can make horrible choices because they aren’t adults yet. That’s why our criminal justice system treats children differently than adults.
The civil lawsuit in which the Government of Canada reportedly paid $10.5 million to settle was not related to what happened in any “firefight” with U.S. troops but the way Canadian government dealt with this 15-year-old Canadian boy once he was imprisoned and tortured into confessing by the Americans. Said the Supreme Court of Canada, this country “actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice.”
So, given the Supreme Court’s decision, it was a no-brainer that Kahdr was going to be compensated by the government and Canadian taxpayers would foot the bill. Although contentious, the settlement may well have been a bargain compared to what the government could have paid to fight and lose Khadr’s inevitable lawsuit.
When I read my old friend’s post of Stubbs’ tweet, I should have politely responded by explaining that criminal lawyers are supposed to defend people charged with criminal offences to the best of their abilities, even if that defendant is Omar Khadr. I should have weighed in and said the appointment of judges in Canada involves an extensive review by independent organizations to eliminate patronage and to depoliticize the process. And I should have said Norris was an excellent choice for a federal court judge. But I didn’t.
So, my new rule on social media is to respectfully engage. Whether they are politicians propagating fake news, the factually challenged scandalmongers at Ontario Proud and BC Proud, anonymous trolls trying to insult, the Russian web brigades out to wreak havoc or just good friends with a different viewpoint, it’s time for me to speak up for judges, the justice system, the rule of law, civil society and, of course, facts.
It’s time for all of us to do that.
Tony Wilson is a franchise lawyer in Vancouver and a bencher of the Law Society of British Columbia. The views expressed herein are strictly his views and do not reflect the opinions of the law society or its respective members.