Presentation of the G. Arthur Martin Criminal Justice Medal to Hon. L. Arbour

Thank you very much. After these very impressive words, I feel duty-bound, my dear friends, to remind you, as I remind myself, of the words that one of my colleagues from the Court of Appeal once said, which is that on occasions like this one should avoid, at all costs, falling into fits of false modesty. Avoiding, therefore the pitfalls of false modesty, I can only accept this overwhelming…overwhelming honor, not so much as a celebration of past accomplishments, but as a mandate to strive for excellence, and to attempt to inspire, the search and the pursuit of excellence in others, which I believe is what G. Arthur Martin stood for throughout his entire professional life. And, it’s very much in that spirit that I stand here today, literally overwhelmed, not in fits of false modesty, but literally overwhelmed by this honor.

Having said that and speaking of past accomplishments, I understand that since I left for the Hague there have been concerns expressed that whatever modest legal skills I might have had in the past, I would now lose, being embroiled in international politics and diplomacy. And, I thought that I should give you a very concrete example, particularly those of you who are likely to appear before me again in the future, that my legal skills are continuing to remain extremely sharp and pointed. And, to do so, I brought with me the title page of a proceeding that was recently filed last summer, just a random selection that I took, of a court proceeding that was filed before the International Criminal Tribunal for the former Yugoslavia. Since, of course, I intended to bring this documents as an object of ridicule, I picked a proceeding filed by the defence, since I thought there was no point picking on my own staff. I just want to read to you the title of this particular procedure, because I thought that it would give you every reassurance that I can still, and will continue, to handle matters as challenging as the ones we currently deal with in the Ontario Court of Appeal, such as, I don’t know, motions for permission to file a factum extending the number of pages permitted by the rules. So, what I brought before you today, as I’m sure you can access on our web page on the internet, is a motion, put forward by the defence in a case called The Prosecutor vs. Dario Corditch and Mario Churkin. I will just pause here for a minute to bring to your attention that as part of my many accomplishments, I have now become the equivalent of the Queen. In our proceedings, we now refer to the Queen against anybody but the prosecutor. This procedure is titled as follows, and you can see that I’m actually reading from the title of the procedure. It’s called: Reply to Prosecutor’s Response to Request for Leave to File a Supplement to the Response in Opposition to the Prosecutor’s Motion for Leave to Amend the Indictment and Request for Access to the Confidential Materials. I am still sharp. And if, in fact, one was to be in any doubt of what the purpose of what that motion was, the same day, the same defence counsel in the same case filed another motion entitled: Withdrawal of the Request for Withdrawal of the Request for Leave to File a Supplement to the Response in Opposition to the Prosecutor’s Motion for Leave to Amend the Indictment. Now, you say that it’s no big deal, this is all procedure, and we all know that’s easy. Now, what about my skills in substantive law? Considerably more challenging, and, I might add, more important for an appellate court judge. Well, if I could take a few more seconds of your time, allow me to read a quotation, that comes at page sixty-six of the five hundred pages of the recent decision of the International Criminal Tribunal for the Former Yugoslavia, in a case called The Prosecutor vs. Delilege, Musagie, Delich & Langsel, otherwise known as the Chalabitchi case, a case that celebrates, certainly in our international circle, a very important decision. The first decision in international criminal law, on the doctrine of command responsibility. So, I certainly don’t want to brandish this document as an object of ridicule, it’s an extremely important decision. At page sixty-six of five hundred, the court said as follows: The international community can only come to grips with the hydra-headed elusiveness of human conduct through a reasonable, as well as a purposive interpretation of the existing provisions of international customary law. Thus, the utilization of the literal, golden and mischief rules of interpretation repay effort. Might I add, something David Watt would have loved to have written himself.

I hope that in no fit of false modesty I have now reassured you that even though I spend a lot of time dealing with politicians and other bad guys, my legal skills have remained intact, both in procedural terms and in substantive law terms, and you should very confident that when I return to the bench I will remain equally committed to the pursuit of excellence in substantive legal matters.

Let me tell you, maybe a little less facetiously, something, in very general terms, about the work that these two International Criminal Law Tribunals, of which I have the pleasure and the honour of being the Chief Prosecutor, to tell you something about the intellectual environment in which we are operating. We are operating, if I could use this kind of image, in a hall of mirrors littered with land mines. We are attempting to rosecute leaders, political military leaders, persons of enormous influence, in a legal environment in which there is no pre-existing legal infrastructure and, in which we face a myriad of extremely challenging difficulty. Some are readily apparent and I don’t have to dwell on it. The whole tribunal for the former Yugoslavia now has a staff of about six hundred people. In the office of the Prosecutor, I lead a staff of about three hundred. And, there’s another hundred and twenty-five in my office in Kigali for the Rwanda tribunal. We come from about fifty-six different countries. So, the first land mine that we have to face in our effort to advance these legal principals is a clash of common law and civil law legal cultures, which in the field of criminal law rests on very fundamental differences in approaches to investigations and prosecutions. The second, which is unknown in many even common law domestic criminal justice systems, is that the chief prosecutor has both the prosecutorial and the investigation stage of the criminal process, which I do. So, of the three hundred people who work in my office in the Hague, about a hundred are investigators, which means that they are, for the most part, very experienced police officers who come from different jurisdictions with background, for the most part in organized crime type investigations. We also have a criminal analyst, military analyst, because we operate often in an environment where military aspects of the investigation is critically important. So, we save another difficulty, which is the difficulty that is endemic in prosecutors actually also controlling completely the investigator’s agenda. We do that in an environment where, contrary to domestic law, criminal law enforcement is not universal. In our country we expect that if a serious crime is denounced it will be investigated. There’s not a huge amount of discretionary judgment that is placed at the outset. In these international tribunals, hundreds of extremely serious crimes; murder, rape, torture, persecution, enslavement of civil populations, and so on, are brought to our attention. And, we can only choose to pursue and investigate a few. And, it’s the same “us” who eventually will take these cases to court. The other intellectual environment in which criminal law is being tested, is in this very uneasy merging of international law and criminal law. One could hardly think of two disciplines that are less well suited to be merged. International law is, in a sense, the quintessential body of consensual law. Everything in international law, is built on agreements and consent, agreements between states. It’s a body of law that is intensely political and tremendously deferential to state sovereignty. Criminal law, on the other hand, is a body of law that is coercive, authoritarian, and, yet, in a sense, ironically, highly suspicious of state power, particularly of state abuse of power. So, we are again, trying to merge two disciplines that rest on very profoundly different premises. And then, to bring home to you in more concrete terms, in this hall of mirrors in which we are trying to operate, some of the very basic principals upon which our criminal justice system has evolved, and upon which, I might add, most of the important rights of the defence have been developed, is based on one fundamental assumption, which is that the prosecution must be kept under a very strict regime of checks and balances, because it has behind it the might of the state, and, that the accused must be given instruments to resist the possible abuses that come from the state power backing up the prosecution. In the cases that I prosecute on many occasions, not only is there not a state behind me, which there never is, but, there is one backing up the defence. There are many instances in which, and I think it will only get worse as we’re moving up the chain of military and political command, and prosecute offenders that were, and in some cases continue to be in control of an entire state machine, the state, actually, is on the other side, which makes us have to reflect, I think in very serious terms, about the design of rules of procedure in evidence, and of substantive law that will be appropriately reflective of this environment in which we operate. And, I think this is an environment in which the likes of G. Arthur Martin would have excelled. And, frankly, I think it’s an environment in which Canadian criminal lawyers do particularly well. And, I suggest to you that this is so, in large part for two reasons. The first one, I think, is the great flexibility of minds and concern with first principals that we have acquired when we were called, at least those of my generation, to rise to the challenge of the Canadian Charter of Rights and Freedoms. And, I have a recollection of speaking to Justice Martin about what he perceives as a very profound challenge, to be prepared to, in a sense, abandon the status quo … a status quo, that as a great legal giant, he had contributed to develop, and, yet to be prepared in a completely open-minded fashion, to reconsider the wisdom and the fairness of rules on which his entire career had been built. I think it’s the true test of the giant scope of his intellect that he rose, late in his career, at a time when many others would not have had the intellectual stamina and courage to reconsider and to start rebuilding, from scratch, a new legal environment in which criminal law would defend justice fairly. I believe that because some of us have lived in that kind of environment, we have developed this capacity to be constantly questioning and I think that that is the landmark of a great criminal justice system. We should aspire, but, we cannot, I believe, dream of ever having a system that will be error free. But, we should guard against having a system that is not prepared to recognize that, and that is not prepared to probe when errors are likely to have been committed. So, I believe the Charter has made Canadians the quintessential international criminal lawyers because of the flexibility of mind that is required to build a new system. The second reason that I think Canadians do well in the legal environment in which I now operate, is one that I don’t think was in the mind of those who appointed me. I believe they appointed me, in large part, because they didn’t know me. That’s another story. But, I think they saw, in someone like me things that have considerable, but superficial appeal, such as bilingualism, and therefore, the ability for me to do prosecutions in Rwanda in a very francophone environment, and so on. What they didn’t know, and what I believe is the most important contributions that I make leading the lawyers and the investigators in my office, is the tremendous natural, ethical reflexes that come from having lived in a Canadian criminal justice environment, where ethics are of primary importance. Uh, I don’t think it’s apparent to the outside world. It’s very apparent to me, now that I have moved in circles in which I deal with criminal lawyers coming from all over the world. I think this is part of the legacy of G. Arthur Martin. And from what I continue to see of the work that you, in this room, are contributing to, I really believe that it’s the landmark of the Canadian Criminal Bar, and, in particular in this province, under the leadership of people who are here today, to have developed an extremely strong commitment to legal ethics. In that context, every decision we have to make in my office, from the extremely trivial, to the very fundamentally difficult substantively…every decision we have to make is made without precedence. We have to figure out what is the correct position we should advance, and we have to do that in real time, operational context, where it matters…it matters what’s going to happen the next day as a result of our decision. When, after having heard the advice from lawyers who work with me, who I respect tremendously, who come from all over the world…after having heard them, eventually I have to make a decision. And, when I have to do that, I often ask myself what would someone like Arthur Martin think of what I want to do, what I think is the correct decision? It’s a very secure way for me of putting the wisdom of that decision to the ultimate test. What would Justice Martin think of that? Having gone through that intellectual process, if I come to the conclusion that I’m not all that sure he would like it, I then move down to the past recipients of this award to try to see if I could find one who would think that it’s really good idea. And, when I’ve exhausted that exercise and I can’t think of a single one of them, not even Martin Freeman who I consider to be quite an open-minded guy, to support the rather daring position that I want to take, I usually go back to Arthur Martin and I think to myself, well, at least he would concede that there is an arguable point. Then I usually move on and do what I wanted to do in the first place. I believe that the career of G. Arthur Martin, and of those who have received this award in the past, is a testimony to the fact that in war, in peace, and in professional life, it is considerably more difficult to be consistently decent, than to be occasionally heroic. G. Arthur Martin was one of these extraordinary persons who could be both. But, for the most part, I think we can often rise to the occasion of an extraordinary challenge, but, to maintain, on a day to day basis the fundamental decency that gets us to do, most of the time, the right thing, I think is a more difficult exercise.

Before I leave you to continue in your proceedings, I have, on previous occasions made this reference, but, I want to say it again because it captures, in a very profound way, the true difficulty of the work that we’re doing internationally. It’s difficult on every aspect. We never have enough money, enough political support, and so on. But, the real difficulty, I think, was very well captured in the fabulous novel by Anne Michaels, called Fugitive Pieces, in which she tells a tale that raises the kind of issues over which an ethical prosecutor in the international environment certainly would lose a lot of sleep. Uou may recall she tells the story of the learned, well known and well respected Rabbi, who had been invited to travel to a nearby village to give a lecture. And, while he was traveling on the train, in order to be quiet and peaceful and not distracted, he decided to disguise himself as a beggar so that his fellow passengers would not recognize him. And, indeed they did not, and they gave him very disapproving stares when they saw this beggar on their train. And, when he arrived at his destination he was met by those who had invited him, and was celebrated, of course, as the learned, great scholar that he was. And, his fellow passengers were mortified that they had behaved so badly towards the beggar on the train, and they asked for his forgiveness, but, he wouldn’t respond. And, every week they came to him and asked to be forgiven for their terrible behaviour, and he still wouldn’t respond. And, months went by, and they begged, and he wouldn’t respond. And, after a year, somewhat angrily, they told him that it was his duty to forgive, that he could not withhold his forgiveness forever, or at least that he had to give a reason why he wouldn’t forgive. And, he said to them, I cannot forgive you, you are asking the wrong man, you must ask the man on the train for his forgiveness. Well, I’m often asked whether it’s hard to do this work, because the crimes that we’re dealing with are so enormous. And, I have to say that after we’ve overcome the political difficulties, and the financial difficulties, I think what is the hardest is to pretend to extend the forgiveness, not of the beggars on the train, but, of the men who were on the buses that left Sbrebniza in the summer of 1995 and have never been seen alive again.

Thank you very much.