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Anne Mactavish

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Anne L. Mactavish
Judge
Federal Court (Canada)
Incumbent
Assumed office
November 19, 2003[1]
Nominated byJean Chrétien
Personal details
BornMontreal, Quebec, Canada[1]
Alma materBishop's University, University of New Brunswick, University of Ottawa

Anne L. Mactavish is a Canadian Federal Court trial judge. Born in Montreal, Quebec, Canada, her education was at Bishop's University, University of New Brunswick and University of Ottawa. She was called to the Bar of Ontario in 1982. She became an Associate and Partner at Perley-Robertson, Panet, Hill & McDougall from 1982 to 1996. She was appointed President of the Human Rights Tribunal Panel in 1995, and Chairperson of the Canadian Human Rights Tribunal in 1998. (The rules stipulate that the Chairperson of the Canadian Human Rights Tribunal be appointed for a term of not more than seven years.[2]) Mactavish was also President of the County of Carleton Law Association.

As of January 2009, she remains President of the Canadian Institute for the Administration of Justice. She was appointed Judge of the Federal Court and Member ex officio of the Federal Court of Appeal on November 19, 2003. She was appointed as a Judge of the Court Martial Appeal Court of Canada on March 23, 2004.[1]

Ruling regarding Nuremberg Principle IV

Justice Mactavish has taken a role in hearing at least two well publicized cases: those of Jeremy Hinzman[3] and Robin Long.[4] They were both Iraq War Resisters who claimed that the international law Nuremberg Principle IV put them under legal obligation to avoid participating in the invasion of Iraq and the Iraq war. In order to avoid the punishment for desertion which they would face if they returned to the United States, they applied for refugee status in Canada.

When Mactavish ruled against Jeremy Hinzman's application for refugee status on March 31, 2006, there was the following press coverage: Coverage included the following criticism from Alex Neve, who taught international human rights and refugee law at Osgoode Hall Law School,[5] and who was appointed an Officer of the Order of Canada, in honour of his human rights work.:[6]

Mactavish argued, ... "An individual must be involved at the policy-making level to be culpable for a crime against peace. The ordinary foot soldier is not expected to make his or her own personal assessment as to the legality of a conflict. Similarly, such an individual cannot be held criminally responsible for fighting in support of an illegal war, assuming that his or her personal war-time conduct is otherwise proper." Amnesty International's Canadian...secretary general Alex Neve, expresses concern that Mactavish's decision sets a precedent... [and] runs contrary to other international law rulings [such as Nuremberg Principle IV].[3][7][8]

Mactavish's ruling against Jeremy Hinzman also later drew the following criticism from Lawrence Hill in the Ottawa Citizen:

Sadly, Canadian courts and the Immigration and Refugee Board have danced around the question of whether deserters from the U.S. forces should not be compelled to take part in an illegal war. When she ruled against Jeremy Hinzman last year, Justice Anne Mactavish of the Federal Court of Canada wrote: "the question of whether the American-led military intervention in Iraq is in fact illegal is not before the Court, and no finding has been made in this regard."[9]

That quote from Mactavish referred to the earlier decision of Brian P. Goodman to disallow evidence concerning the legality of the Iraq war in the Hinzman case:[10] That earlier ruling by Goodman had been covered by the Toronto Star with this statement:

... the federal immigration officer ... ruled that Hinzman may not use the legal basis of the Iraq war to justify his ... claim.

This, in itself, is odd reasoning. As Hinzman's lawyer Jeff House points out, Canada has accepted the illegal war argument before.

In 1995, a federal court judge ruled that a deserter from Saddam Hussein's army was entitled to refugee status because he had been ordered to participate in Iraq's illegal 1990 invasion of Kuwait.

Citing what he labelled an authoritative text, Judge Arthur Stone wrote, "There is a range of military activity which is simply never permissible in that it violates basic international standards. This includes ... non-defensive incursions into foreign territory."[11]

After the Mactavish ruling against Hinzman on March 31, 2006, the case was appealed to the Supreme Court of Canada. But on November 15, 2007, a Coram of the Supreme Court of Canada made of Justices Michel Bastarache, Rosalie Abella, and Louise Charron refused an application to have the Court hear the Hinzman case on appeal, without giving reasons.[12] [13]

... in written arguments to the Supreme Court of Canada, Mr. House pointed out that although our courts have so far refused to grant refugee status to Americans soldiers who are deserting military duty out of moral objection to the war in Iraq, in 1995 the Federal Court of Appeal granted refugee status to a deserter from Saddam Hussein's armed incursion into Kuwait, on the basis that he should not be compelled to take part in an illegal war. "The courts are taking one stance for Saddam Hussein's soldiers and another one entirely for American soldiers," Mr. House said.[9]

In the later similar case of Robin Long on July 14, 2008, "Madam Justice Anne Mactavish of the Federal Court of Canada cleared the way for [Long's] deportation ..."[4] Robin Long was the first U.S. soldier to be deported from Canada to the United States.[14][15][16][17][18][19]

See also

References

  1. ^ a b c Federal Court of Canada, The Honourable Anne L. Mactavish Archived 2011-07-19 at the Wayback Machine
  2. ^ "Canadian Human Rights Tribunal, About the CHRT, Members". Canadian Human Rights Tribunal. 2005-03-03. Archived from the original on June 8, 2008. Retrieved 2009-01-09.
  3. ^ a b Mernagh, M. (2006-05-18). "AWOL GIs Dealt Legal Blow". Toronto's Now Magazine. Archived from the original on 2011-06-05. Retrieved 2008-06-02.
  4. ^ a b Matas, Robert (2008-07-15). "Canada Will Deport US Army Deserter". The Globe and Mail/ CommonDreams.org. Retrieved 2009-01-08.
  5. ^ "Profiles of Conference Facilitators". Human Rights Defenders Conference. African Human Rights Defenders Project-Canada. Archived from the original on 2007-07-06. Retrieved 2007-12-29.
  6. ^ "Governor General Announces New Appointments to the Order of Canada". Governor General of Canada. 2007-12-28. Archived from the original on 2008-01-01. Retrieved 2007-12-29.
  7. ^ Hinzman v. Canada Federal Court decision. Paras (157) and (158). Accessed 2008-06-18
  8. ^ Roman Goergen (February 23, 2011). "Sanctuary Denied". In These Times. Retrieved 6 March 2011.
  9. ^ a b Hill, Lawrence (November 24, 2007). "Just desertions". Ottawa Citizen. Archived from the original on 15 February 2009. Retrieved 30 January 2009. {{cite news}}: Cite has empty unknown parameter: |coauthors= (help)
  10. ^ Mernagh, Matt (December 16–23, 2004). "A just deserter: Jeremy Hinzman puts alleged U.S. war crimes on trial in T.O." Now Magazine. Archived from the original on 5 June 2011. Retrieved 19 July 2009. {{cite news}}: Cite has empty unknown parameter: |coauthors= (help)
  11. ^ Walkom, Thomas (November 30, 2004). "Deserter Poses a Problem for Ottawa". Toronto Star, (Common Dreams re-publish). Archived from the original on 22 November 2006. Retrieved 31 January 2009. {{cite news}}: Cite has empty unknown parameter: |coauthors= (help)
  12. ^ CBC News (2007-11-15). "Top court refuses to hear cases of U.S. deserters". CBC News. Archived from the original on 5 June 2008. Retrieved 2008-06-02.
  13. ^ "Supreme Court of Canada - Decisions - Bulletin of November 16, 2007, (See Sections 32111 and 32112)". Archived from the original on February 16, 2009.
  14. ^ Fong, Petti (2008-07-16). "U.S. army deserter first to be deported". Toronto Star. Retrieved 2009-01-08.
  15. ^ Austen, Ian (2008-07-16). "Canada Expels an American Deserter From the Iraq War". The New York Times. Retrieved 2009-01-08.
  16. ^ "U.S. deserter deported to Colorado: army official". cbcnews.ca. 2008-07-15. Archived from the original on 7 December 2008. Retrieved 2009-01-08.
  17. ^ Kyonka, Nick (2008-07-16). "Other war resisters undaunted by expulsion". Toronto Star. Retrieved 2009-01-08.
  18. ^ See also: Robin Long v. Canada (MCI & MPSEP), IMM-3042-08 (July 14, 2008), Justice Mactavish
  19. ^ "Between JAMES COREY GLASS and THE MINISTER OF CITIZENSHIP AND IMMIGRATION". Federal Court of Canada. July 17, 2008. p. Paragraph 41. Archived from the original on July 8, 2012. Retrieved 2009-05-15.
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