Law Times

Law Times • November 16, 2009 NEWS 'A spy is not what this guy was doing' Continued from page 1 understood in Canada" and for "being a member of an organization that there are reasonable grounds to believe en- gages, has engaged or will engage in" the acts. Th e letter goes on to name the So- viet army unit Afanasyev belonged to from 1985 to 1987 and notes his training in radio intelligence that in- cluded interception and special NATO telegraphic codes. It says his duties in Torgau, East Germany, entailed listen- ing to English-language communica- tions coming from U.S. bases in West Germany and identifying and "debrief- ing" various frequencies and telegraph codes. Th e letter identifi es Afanasyev's army unit, the 82nd Special Com- munications Brigade, 11th Company, 1st Platoon, as the "organization" the government has reasonable grounds to believe engaged in espionage. "I have reached this conclusion because you made these admissions during your background investigation interviews," the letter states. But Segal and Peter Rekai, the Toron- to lawyer who has represented Afanasyev during his lengthy visa application, argue he was engaging in military intelligence work, not espionage. Rekai made that case in letters to the Canadian Embassy that have been fi led in Federal Court, while Segal is making it as Afanasyev's lawyer for the appeal. "A spy is not what this guy was do- ing," says Segal. "He was an 18-year- old private listening to gobbledygook going through the air, writing down what he heard, and passing it along. "Th at's part of military intelligence. All countries do it. I don't see it any dif- ferent than 50,000 years ago some Ne- anderthal standing on one mountain in the sunlight, putting his hands over his eyes, and looking at the guys on the mountain across the valley and saying, 'Th ere's seven guys over there.'" Segal has asked the court to appoint a special advocate for the case — un- usual for an immigration appeal — because federal lawyers redacted fi ve pages of documents they had originally disclosed in uncensored form. Th e court record also includes a three-page CSIS memo with redact- ed sentences and words that describe Afanasyev's response in one or more of his interviews. As of late last week, Segal said he hadn't yet seen the CSIS memo. Th at memo appears to be the ba- sis for a recommendation to the em- bassy from the security directorate at the Canada Border Services Agency to deny the entry visa. Th e memo says Afanasyev denied he needed a security clearance to be- long to his unit and notes he also told interviewers he lost his military record booklet. Th ere is a reference as well to Afanasyev's father's service in the So- viet army as a translator. Th e lawyers representing the federal government found themselves in the embarrassing position of seeking a court order that compelled Segal to return the fi ve pages of documents they inadver- tently fi led as part of the record. Th e documents contained the names of individuals CSIS was investigating as well as the names and telephone numbers of CSIS personnel. Segal had already taken steps to comply with a request to return them before the court granted the order. Michel Drapeau, a prominent for- mer Canadian army colonel who is now a practising lawyer and lecturer at the University of Ottawa law school, agrees with Segal. "It may not be black and white but it's pretty close," says Drapeau. "Some- one as a private, he is just doing his job, basically listening in. Based on what you're telling me, this guy is a member of the armed forces. He ba- sically did his job, which is legal under both national and international law, that is, doing a signaling interception, military counter-intelligence, and all the military all over the world, particularly a sophisticated one, does it." LT Thomas defies assumptions about race Continued from page 1 has led to this appointment." Justice Manjusha Pawagi, a family court judge at the Ontario Court of Justice in Brampton, said there is no singular neutral position for judges to draw on. "We all have our biases, our viewpoints, and our prejudices," she said. Pawagi suggested it's up to judges to become aware of their distinct perspectives on issues and develop methods of keeping them in check. "When we look at judging, what we're asking as a society of our judges is that we ask them to take on the awesome responsibil- ity of being aware of their biases, scrutinizing them, and making sure that they're not relying on them inappropriately in their decision-making," she said. Justice Shaun Nakatsuru, also of the Ontario Court, framed his view of Sotomay- or's comment around the is- sue of "social-context" judging. Nakatsuru, whose father was one of thousands of Japanese- Canadians interned during the Second World War, said judges "cannot escape who we are." "Th e social context of any case we decide is going to be more or less important but that has to be viewed through the perspective of our own background," he added. Nakatsuru referred to the 1997 Supreme Court of Can- ada ruling in R. v. S. (R.D.), which set guidelines for ruling whether judges have demon- strated a reasonable apprehen- sion of bias. Th e decision also off ered instruction on the use of social-context judging. Th e case involved police ac- tions against a young black man in Halifax who had allegedly interfered with offi cers mak- ing an arrest. Questions arose about the possible bias by the judge who acquitted the man due to references about preva- lent racial attitudes among po- lice at the time. Th e top court determined the judge's decision was not biased and went on to elucidate on so- cial-context judging. Nakatsuru described the technique as calling on judges to "be impartial and have an open mind." He said he uses social-context judging, for example, in assessing an accused person's reaction when confronted by police. Nakatsuru said his background suggests that someone who runs away from police has something to hide. But he said a person from a diff erent part of the country with a separate experience with police might run from offi cers even if they don't have something to hide. "So the act of conscious social-context judging simply means I should open my mind to the fact that, for this indi- vidual, fl eeing from the po- lice may not necessarily mean that the person may be guilty of some criminal behaviour," he said. Juriansz, meanwhile, told the conference it's impossible to pre- dict the opinions of individual members of racialized groups. Marketplace EMPLOYMENT WANTED SERVICES - Available law clerk. Proficient in estates, real estate, litigation, ADR, corporate/commercial and labour and employ- ment. Part/full time. Messages (416) 621-2485. To advertise call 905-841-6481 No, we don't really think of ourselves as superheroes (although, we do regularly appear just in time to save the day) E-discovery requires expertise, strategic understanding, diligence and a uniquely collaborative approach. Fortunately, we have access to the most talented litigation support experts through our broad network of industry leaders and our ever-expanding database of over 30,000 legal professionals. Keep your e-discovery requirements in-house by recruiting our e-discovery experts. For seamless integration with the shortest possible search time – whatever your needs … whether it be one expert, a team, direct hire, temporary or contract. Just call us. We'll be there! • Phone: (416) 363-7227 • Fax: (416) 363-6125 • kentlegal.com • www.lawtimesnews.com He cited, as an example, U.S. Supreme Court Justice Clarence Th omas, who is black. Th omas grew up in a poor community in Georgia and went on to spend part of his career working for a national anti-discrimination organization yet has garnered a said Juriansz. reputation as one of the court's most conservative judges. "So you just cannot predict," LT PAGE 3

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