Tuesday, December 07, 2010

The Sanctity of Assange

This is not a petition to nominate Julian Assange for sainthood...but it is a public plea to the Calgary Police Service and the Attorney General of Alberta:

Julian Assange is a person whose life is deserving of protection in the same manner and with the same force of the law as anyone else. In a province that so boldly pats itself on the back for its "tough on crime" stance, I urge you not to trivialize a nationally broadcast encouragement of murder.

You cannot be "tough on crime" against disadvantaged immigrants, homeless people, drug addicts and the like, and then totally change the standard when the person accused is a former campaign manager and political adviser to the Alberta-based Prime Minister. Alberta is precisely the jurisdiction that, in its relentless pursuit of criminal convictions for often the most minor of criminal conduct, has the "law and order" credibility to host a prosecution of Tom Flanagan for his public advocacy for the assassination of Mr. Assange.

As an aside I suggest, though, that because Mr. Flanagan is a former political adviser to the currently sitting Alberta-based Prime Minister that Alberta is absolutely not the jurisdiction whose public servants should be making the decision whether to prosecute. The reasonable apprehension of bias is impossible to get away from...regardless of what the final decision is.

I am a strong supporter of free speech and I have serious concerns that people, particularly university professors, not be unduly restricted in engaging in public debate on issues of public interest and importance out of fear of criminal prosecution. So I echo the comments of fellow University of Calgary alumnus and Calgary Herald contributor, Kris Kotarski:

"...if one has to draw the line somewhere, then incitement to murder is not a bad place to do so, especially when the person who is doing the inciting holds a position of power."

Might I also attempt to stop the Crown from disposing of this case solely upon a review of s. 464 of the Criminal Code and the much too easy to predict legal assessment that due to having publicly apologized for the comments Mr. Flanagan has demonstrated that he did not have the actual intent that anyone would kill Mr. Assange. I offer two pieces of advice:

1. Review in detail the Supreme Court of Canada decision in R. v. Hamilton, [2005] 2 S.C.R. 432 which clearly establishes that actual intent that Mr. Assange be murdered is not required. It is enough to establish that the encouragement to kill Mr. Assange was accompanied by an awareness of an unjustified risk that the offence counselled was in fact likely to be committed as a result of Mr. Flanagan's conduct.

The inescapable fact is that Professor Flanagan was called on a national Canadian news program to talk about Julian Assange and the Wikileaks story for precisely the fact that he has credentials, political connections, and therefore credibility for his opinions to be taken seriously by viewers. Otherwise, Michael Bates or Bill the homeless guy outside of the studio could be the guest...anyone can have an opinion on this issue.

In light of the seriousness with which the international community is reacting to the leaks of secret diplomatic documents and matters of international relations and foreign policies (including concerns that wars have started over these types of breaches of sensitive secrets) does it not create an unjustified risk that someone might take seriously the suggestion of a former Stephen Harper adviser that Mr. Assange be assassinated?

Which leads to the second point.

2. If the standard for a charge under s. 464 is not met because Mr. Flanagan's remarks are accepted as "glib" and made truly with such little care or thought for the fact that Julian Assange is actually a human being that could be killed, then how does one not proceed with a charge of criminal negligence under s. 219 of the Criminal Code which reads:

Every one is criminally negligent who (a) in doing anything...shows wanton or reckless disregard for the lives or safety of other persons.

Were Mr. Flanagan's comments not a marked departure from the standard of a reasonable person acting as a seasoned political commentator on a national news program talking about a guy who has been in hiding in part due to prior threats against his life?

In order to assist in the analysis of both of these potential charges let me suggest an exercise for the assigned prosecutor. Take Professor Flanagan's actual remarks verbatim, and where the name Julian Assange appears or where Assange is clearly the subject of the remarks, take out his name and replace it with any number of the following (you can think of your own examples too...and if you want to make it really fun, imagine the person making the statement is Julian Assange):

Prime Minister Stephen Harper
Beverly McLachlin, CJC
Premier Ed Stelmach
Alison Redford, Q.C.
Chief Rick Hanson
Tom Flanagan
Michael Bates
Any citizen...

My point I hope is obvious. If the determination is that there is no reasonable likelihood of conviction, or no public interest in pursuing charges against Mr. Flanagan, does that not send the message to the world that you are free to come to Alberta to broadcast your public suggestions that people be killed? Make sure you chuckle a bit when you say it and then say you are sorry for the broadcast the next day and all is well?

If Mr. Assange were to say the exact same thing about anyone on the list above are we really to believe he would face no charges for it? If the rule of law and equality before the law and the idea of a blindfolded Lady Justice are the guiding principles here, I truly hope that the decision is made with the above commentary in mind...because it is just too easy to ignore the personal interests of an "international rogue"...too easy to fail to consider the sanctity of Assange.

Michael Bates