Globe and Mail | Nov. 17, 2004 | Rheal Seguin

Top court is asked to rule on conspiracy theory

Judges to consider whether Cotler abused powers by facilitating Abella appointment

Wednesday, November 17, 2004 - Page A6

QUEBEC -- The Supreme Court of Canada is being asked to rule on a conspiracy theory that calls into question the impartiality of the country's highest court.

Quebec City lawyer Guy Bertrand alleges that Justice Minister Irwin Cotler was in a conflict of interest and abused his powers by bowing to pressure from the Canadian Jewish Congress to have Madam Justice Rosalie Abella appointed to the top court as part of the effort to have Mr. Bertrand's client, former Rwandan political activist Léon Mugesera, deported.

Mr. Mugesera, who is alleged to have incited genocide and racial hatred in his home country, has been fighting deportation for 10 years.

In 2003, he appeared to have won that battle when the Federal Court of Appeal dismissed allegations that a 1992 speech given by Mr. Mugesera, a Hutu activist, incited violence against Rwanda's Tutsi minority. But the federal government appealed that decision and a hearing is scheduled for Dec. 8.

Mr. Bertrand is asking the court to reject the appeal before the hearing by ruling that the Justice Minister had a personal agenda in seeking Mr. Mugesera's deportation.

The brief contains sweeping allegations suggesting that Mr. Cotler was involved in a conspiracy with the Canadian Jewish Congress to appoint Judge Abella to the top court to prevent an unbiased and impartial ruling in Mr. Mugesera's case.

A spokesperson for Mr. Cotler's office said it would be inappropriate for the minister to make any public comments at this time.

Mr. Bertrand contends that Mr. Cotler, a former president of the Canadian Jewish Congress, made statements that supported Mr. Mugesera's deportation. The brief also alleges that Mr. Cotler has close ties with Judge Abella's husband, historian Irving Abella, also a past president of the CJC. Mr. Bertrand states that Mr. Cotler and Judge Abella participated in public forums where Mr. Mugesera's alleged hate crimes in Rwanda were denounced.

The CJC, in its role as a public advocate, seeks to intervene in cases of alleged hate crimes.

Mr. Bertrand says the parliamentary committee that reviewed Judge Abella's appointment was kept in the dark about Mr. Cotler's close ties with Judge Abella, adding that the minister should have withdrawn from the process.

"The failure to withdraw from the nomination process and to reveal all the truth can only lead a well informed observer to conclude that unfortunately when you are powerful, rich and influential like the [Canadian Jewish] Congress for example, you can infiltrate the court through political and judicial lobbying," Mr. Bertrand states in his brief.

CJC president Ed Morgan was appalled that Mr. Bertrand would make such allegations.

"I'm surprised that someone would make this kind of conspiracy allegation," Mr. Morgan said. "It seems so far-fetched, and it is hard for me to believe that anyone would find this argument credible, this kind of untoward link between the Minister of Justice, a current judge of the Supreme Court of Canada and one of Canada's leading historians and legal scholars."

The case has sparked a controversy that Mr. Bertrand hopes will feed into opposition demands for a more extensive review process of Supreme Court judge nominations.

Mr. Bertrand, who is no stranger to controversial court cases, is aware of the political impact his attacks may have. The Quebec City lawyer has built a reputation as a formidable litigator and crusader, fighting juvenile prostitution and championing the right to freedom of speech.

However, his political life has branded him as a defector and an unstable ally.

As a founding member of the Parti Québécois, he was known as a radical hard-liner waging a relentless battle against Canadian federalism.

But in the 1990s, he became a fervent defender of federalism.

He won a Quebec Superior Court ruling in 1995 supporting his claim that Quebec secession would be unconstitutional and a threat to law and order.

This time, Mr. Bertrand is attacking the foundations of Canada's justice system in his efforts to defend his client, going as far as to suggest the existence of parallel justice systems: one for ordinary people and another for "those who maintain privileged relations with the right people."

His strongest attacks are against the Justice Minister, alleging that Mr. Cotler deliberately "worked behind [Mr. Mugesera's] back to have him return to Rwanda, all of this so that the minister . . . can use the court to serve his interests and those of his friends."

Mr. Mugesera said he could not understand why the federal government appealed the unanimous decision before the Supreme Court until he learned of the ties that linked Mr. Cotler, Judge Abella and the CJC.

"I live in anguish, not knowing everything that awaits me and my family as a result of pressures by intervenors such as the powerful Canadian Jewish Congress in collaboration with the Justice Minister and Attorney General," Mr. Mugesera expresses in an affidavit filed in Supreme Court of Canada on Monday.

The Canadian Jewish Congress was awarded intervenor status in the appeal that is scheduled to be heard on Dec. 8. Other intervenors against Mr. Mugesera include the University of Toronto, Human Rights Watch and the B'Nai Brith's Human Rights League, all of whom Mr. Bertrand contends have close ties with Mr. Cotler, Judge Abella or both.

Judge Abella has withdrawn from the case. However, Mr. Bertrand contends that the "dice are loaded" against his clients and that the Supreme Court "cannot be impartial in the present case."

The Supreme Court must decide by early next month whether Mr. Bertrand's allegations are founded.

If the court rules against Mr. Bertrand, the appeal aimed at deporting Mr. Mugesera would proceed as scheduled.