Printemps 2015

'Our criminal law system is slipping into a form of oppression': constitutional lawyer

Legal expert Julius Grey and Quebec MNA Amir Khadir on the curious case of Hamza Babou, a student striker refused bail
Ethan Cox

Even early on a Sunday morning, Julius Grey draws a crowd to a press conference. Famous for decades of impassioned and often pro bono defences of civil liberties, Grey is one of Canada’s pre-eminent experts on constitutional rights.

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This morning in Montreal, he joined Québec solidaire MNA Amir Khadir to denounce the indefinite pretrial imprisonment of student activist Hamza Babou, and call on the legal community to act to correct what they described as a miscarriage of justice.

Babou is a student at the University of Quebec at Montreal, one of Quebec’s most radical campuses, and has been an organizer within the university’s student strike movement against austerity this spring. Accused of armed assault (for discharging silly spray in a security guard’s face) and 13 other summary (non-criminal) charges related to picket line confrontations with police and security guards, Babou is being held in prison indefinitely pending the conclusion of his trial. That amounts to a minimum of two weeks of incarceration, and possibly weeks or months more, for a student who is supposed to be presumed innocent.

In his ruling, Justice Denis Laberge did not suggest that Babou represented a flight risk or a danger to the community. He based his unprecedented decision on the third criterion for rejecting bail, the idea that releasing Babou would undermine the public’s confidence in the justice system.

Legal observers have heavily criticized the ruling, pointing out that even Guy Turcotte, a man accused of repeatedly stabbing his infant children to death, was granted bail.

“It's almost a given that someone who has no record, who is charged with a summary conviction offence, it's almost unheard of that they not be granted bail,” attorney Eric Sutton told CTV News last week.

All our coverage of the 2015 Quebec student strike in one place: Printemps 2015 Almanac

“Of course we are not criticizing a particular judgement,” explained Grey at today’s press conference. “It might turn out — through some peculiar reason that I can’t quite imagine — that [the judgement] is correct. The judge certainly had the right elements, the reasons to keep someone in prison: that they might not show up, that they might be dangerous and that third thing which I think is dangerous, the public opinion [criterion].”

“I think he made a mistake on the public opinion,” continued Grey. “I think appeal courts will set that aside. I hope so, but that’s not a criticism of the judge. The remedy against judgement is not criticizing the judge, but appealing the judgement.”

“The problem is if the judge is right, or partially right, about the atmosphere in our society, which would make it acceptable to repress dissent.”

The social acceptability of police repression

So long as the media cheerlead while the police inflict ever more severe violence on students, it should come as a surprise to no one that our society is becoming increasingly permissive of repression. Compounding the problem is a lack of real oversight or accountability for the Montreal police, or even an independent oversight board as Ontario has, leading individual officers to feel a sense of impunity. If there are no consequences for expressing your feelings with a billy club or a gun, then police, who carry both, will continue to do so.

“We are worried,” said Khadir. “We question this situation and the impression that the justice system has taken a side politically. The perception [that it has] is very detrimental to the justice system.”

"Considering the context," Khadir continued. "In which a Liberal minister has asked for more repression of students while the white-collar criminals who were paraded in front of the Charbonneau Comission for years are all still free, the justice system’s heavy-handed and punitive approach towards students gives a perception of a two-tiered justice system, or deux poids, deux mesures" as they say in French.

Punishment before trial

Grey described the judgement as “punitive,” and both he and Khadir positioned the case within a broader context of the criminalization of dissent.

“I think there’s nothing more important than dissent,” said Grey. “And dissent has to be about things that are important to people, and things with which people disagree. There’s no point getting freedom of expression so you can say ‘I love my mother.’ You don’t need that, you could have said that in any dictatorship. The problem is when you say something which does bother people, or act in a way which does bother people.”

“Our criminal law has been getting harsher and harsher, at a time when there is less and less crime,” continued Grey. “The basic principles of criminal law are no punishment without proof beyond reasonable doubt, freedom during the trial process, reasonable sentences, giving effect to absolution and a certain proportionality. There are a number of reasons for [keeping the accused out of jail], not only that a person shouldn’t be punished, but because it’s so much harder to prepare a defence when you’re in jail. Our criminal law has been moving in the wrong direction for at least five years, and I do want to stress that this incident, without discussing the judgement as such, finds itself in a context where we have reason to worry.”

“The issue,” concluded Grey, “is how our criminal law system is slipping into a form of oppression, and it’s not this case alone.”

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