Criminal lawyer and civil rights activist Marlys Edwardh (LLB ’74), known for her work with the wrongly accused, told future lawyers Friday that the greatest challenge of their era will arise from the state’s growing secrecy and lack of transparency.
“We live in a time when there is an absence of legal rules which govern what is sometimes overreaching state power. These seem to be the features of the post-9-11 landscape,” said Edwardh, the recipient of an honorary doctor of laws during the Spring Convocation ceremony for graduands of Osgoode Hall Law School.
“The powers to be tell us that we must fortify our borders. We must approach our neighbours with suspicion and scrutiny. We must denigrate criticism with respect to the actions of the state, for it is at best the talk of fools and at worst the support of terror. These practices, these beliefs, are the enemies of reason, liberty and fairness, and put at risk the values of our democracy as we know them. This is the era that produced the events that surrounded and swirled around Maher Arar.”
Left: Marlys Edwardh
Edwardh, a vice-president of the Board of Directors of the Canadian Civil Liberties Association and a special adviser to the Association in Defence of the Wrongly Convicted, has worked on high-profile, wrongful conviction cases that have had a significant impact on the Canadian legal system, including those of Donald Marshall, Guy Paul Morin and Steven Truscott. She has served as counsel for a number of royal commissions, including the Commission of Inquiry on the Blood System in Canada (Krever Commission. Most recently, she represented Canadian citizen Maher Arar at the commission of inquiry into his rendition from the United States to his native Syria, where he was tortured.
She told graduands if they chose to pursue a career in criminal law, the challenges they would face would more than test them. Just take the case of Omar Khadr, a Canadian citizen apprehended as a child soldier in Afghanistan. “He will stand trial as the first person to be subjected to the widely condemned procedures of the new military commission tribunals of Guantanamo Bay,” says Edwardh.
“His trial may well take place relying in part on evidence obtained by CSIS [Canadian Security Intelligence Service] in an interrogation that our court has determined breached Mr. Khadr’s Section 7 rights. But this charter violation is one where our highest court has failed to grant a meaningful remedy. Therefore, for those of you who go on to practise law, your trusteeship of our values will extend to the defence of the rule of law.”
The defeat of terrorism cannot come at the cost of sacrificing the commitment to the values that are fundamental to this democracy, she said.
Edwardh said much has changed since she attended law school, including the then-prevailing view that the criminal justice system was finely tuned to ensure only the conviction of the guilty. “Today, those of you who wish to work in the administration of criminal justice, for either the Crown or the defence, have seen a paradigm shift. We now know we cannot presume that the administration of justice does not suffer from serious flaws,” said Edwardh. “Investigative techniques, forensic science, expert witnesses and procedural provisions cannot be presumed to promote the conviction only of the guilty. They must be tested and challenged against the standard of protecting the innocent. This paradigm shift distinguishes our courts from the courts of our neighbour to the south.”
Canada, she said, had set up several commissions to critically examine all aspects of the criminal justice system, and the recommendations from these inquiries have changed the face of criminal law. The first started with the commission that investigated the wrongful conviction of Donald Marshall, a 17-year-old First Nations man wrongly convicted of murder in Nova Scotia who served 11 years behind bars. That commission produced a scathing report on criminal justice in Nova Scotia at that time and laid the seeds for a new dialogue and a paradigm shift, which led to a ruling that the Crown bears a constitutional duty to disclose all fruits of its investigation, unless it falls under privileged information.
But upcoming lawyers will face new challenges in a post-9-11 era that will take vigilance to ensure the rights of the innocent are adequately protected. The trusteeship of the paradigm shift will fall to these new lawyers along with the obligation and duty of skepticism and vigilance, said Edwardh. She urged those graduands planning to pursue a career in criminal law to stand resolute and fearless in the cause of justice.
Edwardh has received several awards for her work, including the 2005 Osgoode Hall Law School Dianne Martin Medal for Social Justice Through Law and the Canadian Journalists for Free Expression International Press Freedom Award, also in 2005.