Masthead graphic based on a painting by Gudrun Thriemer.

Monday, April 16, 2007

"Rule of law, military refusal and the police," April 16, 2007

Kyle Snyder, the American deserter who believes that the war in Iraq is illegal, has pulled up stakes and moved to Alberta. Let's hope the small group that has contested the Nelson Police Department's handling of his case keeps the pressure on.

Snyder was arrested on February 23 for what has been loosely described as “an immigration-related” matter after police received an anonymous tip.

The Nelson Daily News reports that “Snyder was detained for several hours and released on conditions and will appear at a hearing at some point in the future.” Several weeks after the arrest, the usual who-what-where-when-and-why of journalism--what were the conditions of Snyder's release, where or when would the hearing take place, conducted by which agency of the government to hear evidence on what charge—these the Daily News was still leaving strictly to the reader's imagination.

With so much secrecy and vagueness, it was to be expected that someone would file a complaint and that the complaint itself would consititute the focus for the next phase.

When Klaus Offerman, speaking on behalf of the complainants, objected to the police investigating themselves, Nelson Police Chief Dan Maluta summoned his most inflated language to claim that he had taken quote “one leap further” endquote when he asked Abbotsford's police chief to conduct the investigation. This created what Maluta described as an “external” investigation.

After volunteering his own opinion of his colleague's integrity, Maluta continued, saying “A lot of it is based on who has a lesser case burden at the time, who's actually physically able to take it on.”

Maluta added that he was “not interested in responding to those people” –meaning the complainants who argued that Maluta should have asked the Office of the Police Complaints Commission to select the agency to conduct the investigation.

In an article under the headline “'We can't do much more” Maluta concluded that “There's a perception of bias because the police are investigating themselves, but we've already been down that road with the audit.” (NDN Apr 4 07)

The Daily News chose not to name the audit Maluta was alluding to, but in early February, Josiah Wood, a former B.C. Supreme Court judge, issued a report in which he found that of the the municipal police complaints under review, 81 per cent were investigated properly, but 19 per cent were “unsatisfactory” or “erroneous.”

Judge Wood made 91 recommendations to correct the situation. Wood indicated that he felt 19 per cent was unacceptably high and that if his recommendations were implemented, “there ought not to be any significant number, if any, flawed investigations.”

He added "If there is still an unacceptably high number of unsatisfactory investigations or erroneous results in the audit which is done three years after the implementation of these recommendations, then I think one has to look seriously at changing the entire process."
(Theodore CNews Feb 7 07)

Woods conclusions suggest that for about one case in five, the practice of police departments investigating complaints against them has failed to deliver the kind of adjudication that one expects from an impartial third party.

Chief Maluta's remarks that he didn't want to speak to the complainants because he didn't know how many there were and that “who has a lesser case burden at the time” is a noteworthy aspect of the issue suggest that his understanding of impartial third party adjudication is feeble indeed.

Having evidently read Judge Wood's audit, Maluta can be expected to understand that the whole system under which the police investigate themselves is on probation. But Maluta appears to have taken the Wood Report as a green light. Or maybe he thinks the public is too dumb to know the difference.

Last week, when Member of Parliament Alex Atamanenko vowed to take Snyder's case to Ottawa, local Robert Legett accused the MP in a letter to the editor of helping quote “create feelings of hostility and mistrust.” endquote Atamanenko had, in Legett's words quote “undermined the NCP's ability to provide a sense of security to the citizens it has been enntrusted to protect.” endquote (NDN Apr 12 07)

However, if the police don't understand the indispensible role of impartial third-party adjudication as a keystone to implementing the rule of law, then you aren't safe. No one is.

Impartiality is no automatic affair. It's hard, deliberate work. It cannot be achieved by allowing the person or institution against whom a complaint has been made to choose the investigator and the judge. That gives too much power to one side of the dispute, one that in this case is already privileged with a monopoly on the legitimate use of force. That may lead to the rule of the police, but it will never lead to the rule of law.

This might explain why Judge Wood discovered the public perception that complaints of police misconduct are conducted differently than other investigations.

It's not just about Kyle Snyder or what you may think about deserters or the legality of the Iraq war. It's not just about municipal police. For better or worse, the Government of Canada, including both Paul Martin's Liberals, and Stephen Harper's Conservatives, have decided that one of Canada's best so-called “exports” is the rule of law.

This policy decision comes at a period of time when there seem to be an unusually large number of high-profile cases that fall under the rubric Rule of Law Failures—not just from police investigating themselves, but also from secrecy and from prejudice.

For example, prejudice—against women, against aboriginals, and against sex trade workers—is alleged to have played a crippling role in the very slow—almost glacial—progress of the investigation into the disappearance of women from the Lower East Side in Vancouver.

Secrecy and possibly racism are believed to have played a similar part in the Maher Arar case and the cases of four other Arab men detained on security certificates. The Arar Inquiry and a recent Supreme Court case have established that false charges and long-term violations of human rights resulted when genuine third-party adjudication was denied.

The failure of the Air India trial to convict any major players cannot be laid solely at the feet of the police, but it is certainly a failure of the Rule of Law, one which many of the families of the deceased attribute to racism.

Justice David Wright's inquiry into the death of 17-year old Neil Stonechild on the outskirts of Saskatoon found that the original investigation by Saskatoon police was "superficial and totally inadequate."

A serious of agressive international activity is that Canadian values of human rights, democracy and rule of law cannot be projected internationally without also projecting Canadian weaknesses and failures, bearing, in mind that what might seem innocuous to a white, middle-class Canadian male may be a lethal defect when it is projected into another cultural context.

For example, when Canada sends police advisors to Afghanistan in the spirit of exporting a Canadian values like the rule of law, what exactly do they teach about the handling of complaints against the police? What do they disclose about the use of official secrecy and the pretext of national security to cover up their own mistakes and wrong-doing? What informalities do they teach about the risks and rewards of racism?

Training the Afghan police has been a formidable task for reasons we may be beginning to understand.

This February, Barnett Rubin wrote in the publication of the American Council on Foreign Relations that

“the 60,000 experienced fighters demobilized from militias have, instead of joining the army, joined the police, private security firms, or organized crime networks -- and sometimes all three. One former mujahideen commander, Din Muhammad Jurat, became a general in the Ministry of the Interior and is widely believed -- including by his former mujahideen colleagues -- to be a major figure in organized crime and responsible for the murder of a cabinet minister in February 2002. (He also works with U.S. Protection and Investigations, a Texas-based firm that provides international agencies and construction projects with security guards, many of whom are former fighters from Jurat's militia and current employees at the Ministry of the Interior)" (Rubin Foreign Affairs Jan/Feb 07).

Corruption and wrong-doing in the Afghan police has also played a largely unacknowledged part in the reluctance of some coalition members to provide more troops for combat in the south.

In an earlier paper, Rubin
"Some European NATO members are resisting unification of command with the Coalition that might lead to their troops’ participation in counterinsurgency operations and lead them to turn over detainees to the US government, in whose custody they risk treatment in violation of international humanitarian law.17 They have now decided to turn prisoners over to the Afghan government on the condition that prisoners will neither be executed nor turned over to US custody." (CFR Apr 2006 30/56)

Listeners to World Report will recall the case of the anonymous detainees of Dukah, which revealed that Canada has no such agreement, but has long handed prisoners over to the Afghan government with no reservations whatever about their treatment.

It will be interesting to note how much of Kyle Snyder's misfortune with the Nelson police follows him to Alberta.

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