Following the law of conscience

  • June 4, 2010
Errol MendesUniversity of Ottawa law professor Errol Mendes has been accused of playing partisan politics, siding with the Taliban against Canadian soldiers and aiding terrorists. He gets vicious hate mail, and at first thought it might not be a good idea to have his picture taken.

The reason? A constitutional law expert, Mendes has argued that Parliament has a right and a duty to examine uncensored documents that might reveal whether Afghans captured by Canadian troops were later tortured in Afghan prisons.

On the technical side of the law, he is arguing for the supremacy of Parliament. In his conscience, he’s arguing for Christ.

“Before He died, He was tortured in the most horrible way imaginable,” said Mendes. “That (torture) is something which I think Christians should not accept under any conditions.”

Mendes doesn’t claim he knows Canada is complicit in Afghan torture. Rather, he’s urging Parliament and Canadians to look closely and unflinchingly at the possibility.

“We will lose our better angels if we let this be buried,” he said.

Afghan prisoner transfer timeline

Dec. 18, 2005: first prisoner transfer agreement between Department of National Defence and the Government of Afghanistan signed by General Rick Hillier. It does not provide for Canadian access to transferred prisoners. The agreement, signed in the midst of an election campaign, is not made public until March, after a new government has taken office.

May and June 2006: the Red Cross warns diplomat Richard Colvin and at least two other Canadian officials that prisoners sent to Afghan jails face a serious risk of torture.

February 2007: University of Ottawa law professor Amir Attaran reveals documents obtained through a freedom of information request that show Afghan prisoners may have been abused. Attaran’s research prompts an Amnesty International Canada and British Columbia Civil Liberties Association complaint to the Military Police Complaints Commission, which launches an investigation.

May 3, 2007: Hillier announces a new prisoner transfer agreement which allows for Canadian monitoring of prisoners.

Jan. 23, 2008: The Globe and Mail reveals the government had secretly halted prisoner transfers for months in 2007.

Nov. 18, 2009: Colvin testifies before Parliament saying that while he was the second highest ranking Canadian diplomat in Afghanistan he had written memos warning of the possibility Canadian-captured prisoners were being tortured in Afghan jails. The 17 reports were cc’d to more than 70 colleagues in Foreign Affairs and the Department of Defence in Ottawa.

Dec. 30, 2009: Parliament prorogued.

Feb 3, 2010: Constitutional lawyer Errol Mendes and military legal expert Michel Drapeau urge Parliament to demand access to the full record on prisoner transfers. “The refusal to release the uncensored documents is a violation of the Canadian Constitution,” Mendes tells an informal hearing by Opposition Parliamentarians into Afghan prisoner transfers. Mendes gives his opinion that if the Conservative government refuses to hand over documents it will be in contempt of Parliament.

March 5, 2010: retired Supreme Court judge Frank Iacobucci appointed to advise the government on whether releasing documents to Parliament would be injurious.

April 27, 2010: Speaker Peter Milliken rules that Parliament has a right to see uncensored documents and asks for the parties to negotiate a way of sharing the documents without compromising security. At The Catholic Register’s press time no agreement on access to uncensored documents had been announced.

Mendes’ parents hail from Goa and he was raised partly in Kenya as part of a devout Catholic family.

“My parents were both very, very religious Catholics, as is my whole family,” he said. “I guess we were always brought up to believe there is something bigger than ourselves, and certainly our religion is part of that.”

University of Windsor lecturer Duane Falconer finds Mendes’ courage to stand up for his conscience inspiring.

“I applaud Mendes, who has taken Lumen Gentium to heart,” said Falconer in an e-mail to The Catholic Register. “He knows that every lay Catholic has a mission in this life, to speak and live the Gospel, especially as Jesus did — on behalf of those who are marginalized and without a voice.”

Falconer teaches a philosophy course called Law, Morality and Punishment. Mendes’ willingness to let his conscience guide how he practises law shows a different side of lawyers, he said.

“We need more lawyers such as Mendes, who press political leaders and governments to value human persons, even political prisoners,” said Falconer. “He knows the mystery of each and every human person, even one in chains.”

Michael Osborne, president of the St. Thomas More Lawyers’ Guild of Toronto, thinks of Mendes’ constitutional arguments on the prisoner abuse file as part of a long tradition of public service by lawyers.

“The fact that it’s informed by his Catholic faith is just further proof that there’s no conflict. You can be a good lawyer and you can be a good Catholic,” Osborne said. “In fact, being a good Catholic may make you a better lawyer in some sense.”

There should be nothing unusual about calling the government to be accountable to Canada’s Crimes Against Humanity and War Crimes Act, said Osborne. The Canadian law is part of Canada’s commitment to the international law that supports the International Criminal Court in The Hague.

“When you get to things like torture, that’s a clear moral issue. The fact that there’s international law around this shows the existence of a strong international consensus,” Osborne said.

In appealing to international norms and standards, Mendes is making legal arguments that in some sense mirror arguments St. Thomas More made in his own defence against the charge of treason in 1533. St. Thomas argued that King Henry could not assume the title of head of the church in England because this would be contrary to international norms, said Osborne. For St. Thomas, as for Mendes, international law was not a mere nuisance. It was how his nation lived up to the obligations of civilization.

The more fundamental parallel with St. Thomas is Mendes’ willingness to stand up for his conscience on a public issue. St. Thomas had no fear of being unpopular as he wrote dozens of pamphlets attacking Protestant reformers.

Osborne thinks the people excoriating Mendes in online comments and letters to the editor need to step back and think.

“The whole you’re-attacking-our-soldiers thing is quite over the top. I would be shocked if our soldiers supported the idea of torture,” he said. “Regardless of what the rights and wrongs of particular cases are, it’s a worthy thing to bring it to people’s attention so that the truth can be known.”

“When you engage in torture, you’re not only torturing the man or the woman in front of you, you’re torturing the God you believe in,” said Mendes.

Mendes believes the government will likely continue to stall any meaningful enquiry into the issue. He predicts the government’s next tactic will be to flood the Parliamentary committee looking at the Afghan detainee issue with 120,000 documents — ensuring it will take years to sort the wheat from the chaff.

At the same time he takes heart from the messages of support he receives.

“Usually from very elderly people, which is kind of interesting,” he said. “They’ve usually either been in wars and the horrors of war, or understand that there’s limits to what human beings can do.”  

Mendes is counting on the courage of Canadians, the courage to confront our lesser angels.

“It’s bigger than any of us, bigger than any government of the day. It’s bigger than any poll. It goes to the root of why we exist.”


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