Anne Mactavish
Encyclopedia
Anne L. Mactavish, a Canadian Federal Court
trial judge, was born in Montreal, Quebec. 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 to1996. 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.) 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.
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 U.S., 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
, and who was appointed an Officer of the Order of Canada
, in honour of his human rights
work.:
Mactavish's ruling against Jeremy Hinzman
also later drew the following criticism from Lawrence Hill
in the Ottawa Citizen
:
That quote from Mactavish referred to the earlier decision of Brian P. Goodman
to dissallow evidence concerning the legality of the Iraq war
in the Hinzman
case: That earlier ruling by Goodman
had been covered by the Toronto Star
with this statement:
After the Mactavish ruling against Hinzman
on March 31, 2006, the case was appealed to the Supreme Court of Canada
. But on Nov 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.
“... 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.”
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..." Robin Long
was the first U.S.
soldier to be deported from Canada
to the US.
Federal Court (Canada)
The Federal Court is a Canadian trial court that hears cases arising under certain areas of federal law. The Federal Court is a superior court with nationwide jurisdiction...
trial judge, was born in Montreal, Quebec. Her education was at Bishop's University
Bishop's University
Bishop's University is a predominantly undergraduate university in Lennoxville, Sherbrooke, Quebec, Canada. Bishop's is one of three universities in the province of Quebec that teach primarily in the English language...
, University of New Brunswick
University of New Brunswick
The University of New Brunswick is a Canadian university located in the province of New Brunswick. UNB is the oldest English language university in Canada and among the first public universities in North America. The university has two main campuses: the original campus founded in 1785 in...
and University of Ottawa
University of Ottawa
The University of Ottawa is a bilingual, research-intensive, non-denominational, international university in Ottawa, Ontario. It is one of the oldest universities in Canada. It was originally established as the College of Bytown in 1848 by the Missionary Oblates of Mary Immaculate...
. She was called to the Bar of Ontario in 1982. She became an Associate and Partner at Perley-Robertson, Panet, Hill & McDougall from 1982 to1996. She was appointed President of the Human Rights Tribunal Panel in 1995, and Chairperson of the Canadian Human Rights Tribunal
Canadian Human Rights Tribunal
The Canadian Human Rights Tribunal is an administrative tribunal established in 1977 by the Canadian Human Rights Act. It is directly funded by the Parliament of Canada and is independent of the Canadian Human Rights Commission which refers cases to it for adjudication under the Act.The Tribunal...
in 1998. (The rules stipulate that the Chairperson of the Canadian Human Rights Tribunal
Canadian Human Rights Tribunal
The Canadian Human Rights Tribunal is an administrative tribunal established in 1977 by the Canadian Human Rights Act. It is directly funded by the Parliament of Canada and is independent of the Canadian Human Rights Commission which refers cases to it for adjudication under the Act.The Tribunal...
be appointed for a term of not more than seven years.) 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
Federal Court (Canada)
The Federal Court is a Canadian trial court that hears cases arising under certain areas of federal law. The Federal Court is a superior court with nationwide jurisdiction...
and Member ex officio of the Federal Court of Appeal
Federal Court of Appeal (Canada)
The Federal Court of Appeal is a Canadian appellate court that hears cases concerning federal matters arising from certain federal Acts. The court was created on July 2, 2003 by the Courts Administration Service Act when it and the Federal Court were split from its predecessor, the Federal Court of...
on November 19, 2003. She was appointed as a Judge of the Court Martial Appeal Court of Canada
Court Martial Appeal Court of Canada
The Court Martial Appeal Court of Canada hears appeals from military courts .In Canada, courts martial are presided over by independent military judges from the office of the Chief Military Judge...
on March 23, 2004.
Ruling regarding Nuremberg Principle IV
Justice Mactavish has taken a role in hearing at least two well publicized cases: those of Jeremy Hinzman and Robin Long. They were both Iraq War Resisters who claimed that the international lawInternational law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
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
Desertion
In military terminology, desertion is the abandonment of a "duty" or post without permission and is done with the intention of not returning...
which they would face if they returned to the U.S., they applied for refugee status in Canada
Immigration and Refugee Protection Act
Immigration and Refugee Protection Act is an Act of the Parliament of Canada, passed in 2001 as Bill C-11, which replaced the Immigration Act of 1976 as the primary federal legislation regulating Immigration to Canada....
.
When Mactavish ruled against Jeremy Hinzman
Jeremy Hinzman
Jeremy Dean Hinzman is the first American Iraq war resister/deserter to seek refugee status in Canada....
's application for refugee status on March 31, 2006, there was the following press coverage: Coverage included the following criticism from Alex Neve
Alex Neve
Robert Alexander Neve, OC is a Canadian human rights activist and the Secretary General of Amnesty International Canada.Born in Calgary, Alberta, the son of Robert Rex Neve and Jean Elizabeth Taylor, Neve received a Bachelor of Commerce degree in 1984 and a Bachelor of Laws degree in 1987 from...
, who taught international human rights and refugee law
Refugee law
Refugee law is the branch of international law which deals with the rights and protection of refugees. It is related to, but distinct from, international human rights law and international humanitarian law, which deal respectively with human rights in general, and the conduct of war in...
at Osgoode Hall Law School
Osgoode Hall Law School
Osgoode Hall Law School is a Canadian law school, located in Toronto, Ontario, Canada and affiliated with York University. Named after the first Chief Justice of Ontario, William Osgoode, the law school was established by The Law Society of Upper Canada in 1889 and was the only accredited law...
, and who was appointed an Officer of the Order of Canada
Order of Canada
The Order of Canada is a Canadian national order, admission into which is, within the system of orders, decorations, and medals of Canada, the second highest honour for merit...
, in honour of his human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
work.:
"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 InternationalAmnesty InternationalAmnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...
's Canadian...secretary general Alex NeveAlex NeveRobert Alexander Neve, OC is a Canadian human rights activist and the Secretary General of Amnesty International Canada.Born in Calgary, Alberta, the son of Robert Rex Neve and Jean Elizabeth Taylor, Neve received a Bachelor of Commerce degree in 1984 and a Bachelor of Laws degree in 1987 from...
, expresses concern that Mactavish's decision sets a precedent... [and] runs contrary to other international lawInternational lawPublic international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
rulings [such as Nuremberg Principle IV].""
Mactavish's ruling against Jeremy Hinzman
Jeremy Hinzman
Jeremy Dean Hinzman is the first American Iraq war resister/deserter to seek refugee status in Canada....
also later drew the following criticism from Lawrence Hill
Lawrence Hill
Lawrence Hill is an award-winning Canadian novelist and memoirist. He is best known for the 2001 memoir Black Berry, Sweet Juice: On Being Black and White in Canada and the 2007 novel The Book of Negroes....
in the Ottawa Citizen
Ottawa Citizen
The Ottawa Citizen is an English-language daily newspaper owned by Postmedia Network in Ottawa, Canada. According to the Canadian Newspaper Association, the paper had a 2008 weekly circulation of 900,197.- History :...
:
"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 HinzmanJeremy HinzmanJeremy Dean Hinzman is the first American Iraq war resister/deserter to seek refugee status in Canada....
last year, Justice Anne Mactavish of the Federal Court of CanadaFederal Court of CanadaThe Federal Court of Canada was a national court of Canada that heard some types of disputes arising under the central government's legislative jurisdiction...
wrote: "the question of whether the American-led military intervention in Iraq is in fact illegalLegality of the Iraq WarThe legality of the invasion and occupation of Iraq has been widely debated since the United States, United Kingdom, and a coalition of other countries launched the 2003 invasion of Iraq...
is not before the Court, and no finding has been made in this regard."
That quote from Mactavish referred to the earlier decision of Brian P. Goodman
Brian P. Goodman
Brian P. Goodman began a four year period as Chairperson of the Immigration and Refugee Board of Canada on June 4, 2007.In 1974 he was called to the Ontario Bar. He has a Masters Degree in Public Law. In 1983 he joined the Ontario Civil Service...
to dissallow evidence concerning the legality of the Iraq war
Legality of the Iraq War
The legality of the invasion and occupation of Iraq has been widely debated since the United States, United Kingdom, and a coalition of other countries launched the 2003 invasion of Iraq...
in the Hinzman
Jeremy Hinzman
Jeremy Dean Hinzman is the first American Iraq war resister/deserter to seek refugee status in Canada....
case: That earlier ruling by Goodman
Brian P. Goodman
Brian P. Goodman began a four year period as Chairperson of the Immigration and Refugee Board of Canada on June 4, 2007.In 1974 he was called to the Ontario Bar. He has a Masters Degree in Public Law. In 1983 he joined the Ontario Civil Service...
had been covered by the Toronto Star
Toronto Star
The Toronto Star is Canada's highest-circulation newspaper, based in Toronto, Ontario, Canada. Its print edition is distributed almost entirely within the province of Ontario...
with this statement:
"... the federal immigration officer ... ruled that Hinzman may not use the legal basis of the Iraq warLegality of the Iraq WarThe legality of the invasion and occupation of Iraq has been widely debated since the United States, United Kingdom, and a coalition of other countries launched the 2003 invasion of Iraq...
to justify his ... claim.
This, in itself, is odd reasoning. As HinzmanJeremy HinzmanJeremy Dean Hinzman is the first American Iraq war resister/deserter to seek refugee status in Canada....
's lawyer Jeff HouseJeffry HouseJeffry A. House is a lawyer in Toronto, Ontario, Canada. He is best-known for his efforts on behalf and representation of fugitive American soldiers and Native Canadian protesters.-American soldiers:...
points out, Canada has accepted the illegal war argument before.
In 1995, a federal courtFederal Court of CanadaThe Federal Court of Canada was a national court of Canada that heard some types of disputes arising under the central government's legislative jurisdiction...
judge ruled that a deserter from Saddam HusseinSaddam HusseinSaddam Hussein Abd al-Majid al-Tikriti was the fifth President of Iraq, serving in this capacity from 16 July 1979 until 9 April 2003...
's army was entitled to refugee status because he had been ordered to participate in Iraq's illegal 1990 invasion of KuwaitInvasion of KuwaitThe Invasion of Kuwait, also known as the Iraq-Kuwait War, was a major conflict between the Republic of Iraq and the State of Kuwait, which resulted in the seven-month long Iraqi occupation of Kuwait, which subsequently led to direct military intervention by United States-led forces in the Gulf...
.
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."
After the Mactavish ruling against Hinzman
Jeremy Hinzman
Jeremy Dean Hinzman is the first American Iraq war resister/deserter to seek refugee status in Canada....
on March 31, 2006, the case was appealed to the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
. But on Nov 15, 2007, a Coram of the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
made of Justices Michel Bastarache
Michel Bastarache
J. E. Michel Bastarache is a Canadian lawyer, businessman, and retired puisne justice on the Supreme Court of Canada....
, Rosalie Abella
Rosalie Abella
Rosalie Silberman Abella, is a Canadian jurist. She was appointed in 2004 to the Supreme Court of Canada, becoming the first Jewish woman to sit on the Canadian Supreme Court bench.- Early life :...
, and Louise Charron
Louise Charron
Louise Charron is a Canadian jurist. She was appointed to the Supreme Court of Canada in October, 2004, and is the first native-born Franco-Ontarian Supreme Court judge...
refused an application to have the Court hear the Hinzman
Jeremy Hinzman
Jeremy Dean Hinzman is the first American Iraq war resister/deserter to seek refugee status in Canada....
case on appeal, without giving reasons.
“... in written arguments to the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
, Mr. House
Jeffry House
Jeffry A. House is a lawyer in Toronto, Ontario, Canada. He is best-known for his efforts on behalf and representation of fugitive American soldiers and Native Canadian protesters.-American soldiers:...
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
Federal Court of Canada
The Federal Court of Canada was a national court of Canada that heard some types of disputes arising under the central government's legislative jurisdiction...
granted refugee status to a deserter from Saddam Hussein's armed incursion into Kuwait
Invasion of Kuwait
The Invasion of Kuwait, also known as the Iraq-Kuwait War, was a major conflict between the Republic of Iraq and the State of Kuwait, which resulted in the seven-month long Iraqi occupation of Kuwait, which subsequently led to direct military intervention by United States-led forces in the Gulf...
, 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
Saddam Hussein
Saddam Hussein Abd al-Majid al-Tikriti was the fifth President of Iraq, serving in this capacity from 16 July 1979 until 9 April 2003...
's soldiers and another one entirely for American soldiers," Mr. House
Jeffry House
Jeffry A. House is a lawyer in Toronto, Ontario, Canada. He is best-known for his efforts on behalf and representation of fugitive American soldiers and Native Canadian protesters.-American soldiers:...
said.”
In the later similar case of Robin Long
Robin Long
Robin Long is one of several U.S. Army deserters who sought asylum in Canada because of his opposition to the Iraq war and became the first of those to be deported to the United States after being rejected for refugee status...
on July 14, 2008, "Madam Justice Anne Mactavish of the Federal Court of Canada cleared the way for [Long's] deportation..." Robin Long
Robin Long
Robin Long is one of several U.S. Army deserters who sought asylum in Canada because of his opposition to the Iraq war and became the first of those to be deported to the United States after being rejected for refugee status...
was the first U.S.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
soldier to be deported from Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
to the US.
See also
- Alex NeveAlex NeveRobert Alexander Neve, OC is a Canadian human rights activist and the Secretary General of Amnesty International Canada.Born in Calgary, Alberta, the son of Robert Rex Neve and Jean Elizabeth Taylor, Neve received a Bachelor of Commerce degree in 1984 and a Bachelor of Laws degree in 1987 from...
- Mactavish ruling on Jeremy Hinzman in the context of Canada and Iraq War Resisters
- Federal CourtFederal Court (Canada)The Federal Court is a Canadian trial court that hears cases arising under certain areas of federal law. The Federal Court is a superior court with nationwide jurisdiction...
- Jeremy HinzmanJeremy HinzmanJeremy Dean Hinzman is the first American Iraq war resister/deserter to seek refugee status in Canada....
- Nuremberg Principle IV
- Robin LongRobin LongRobin Long is one of several U.S. Army deserters who sought asylum in Canada because of his opposition to the Iraq war and became the first of those to be deported to the United States after being rejected for refugee status...