Many years ago, the B.C. courts turned down an opportunity to examine whether former U.S. president George W. Bush was complicit in torture.

A private prosecution brought against Bush when he was on Canadian soil was called an "abuse of process" by B.C. Supreme Court Justice Deborah Kloegman (then Deborah Satanove). Kloegman also claimed in her 2005 ruling that the lawyer who initiated it, Gail Davidson, had a "political" agenda.

"This is not a legitimate purpose for the bringing of a criminal prosecution and should not be encouraged by this court," Kloegman wrote. "In my view, this amounts to an abuse of process."

The following year, her decision was upheld by the B.C. Court of Appeal.

Now Davidson, founder of Lawyers Rights Watch Canada, wants members of the Canadian legal profession to resume efforts to bring officials in Bush's administration to justice in light of a new U.S. Senate report documenting torture by the Central Intelligence Agency following the 9/11 attacks.

She said that if there are no prosecutions, it's "silliness" for President Barack Obama to suggest that these types of abuses will never happen again.

"What we have the criminal law for is to use accountability provisions as one of the major means of prevention," Davidson told the Straight by phone from her Vancouver home. "And when there is no accountability, of course, there's impunity. That's a recipe for repetition."

The CIA's so-called enhanced interrogation techniques included mock executions, rectal rehydration, ice baths, threatening to kill a prisoner's mother, and surrounding another with a fear of insects in a box full of bugs.

Davidson said she's still disappointed that judges in Provincial Court and B.C. Supreme Court refused to entertain legal submissions over whether Bush had immunity from prosecution.

This occurred even though this issue had been thoroughly canvassed in the British courts in an attempt to prosecute former Chilean dictator Augusto Pinochet.

"They could have decided any way they wanted on the argument, but it was a pity that they refused to hear it," Davidson said. "The U.S. was using torture. It was known then."

Charges laid while Bush was in the country

Davidson's effort to hold Bush accountable began on November 30, 2004, when she persuaded a justice of the peace to approve seven Criminal Code charges while the president was visiting Canada.

She wanted Bush held to account for counselling, aiding, and abetting torture that had occurred in the Abu Ghraib prison in Iraq and at a U.S. detention facility in Guantanamo Bay.

A report earlier that year by U.S. Gen. Antonio Taguba and leaked information from a report by the International Committee of the Red Cross each documented torture at the hands of U.S. authorities.

A week after having the charges approved, Davidson visited the courthouse for a hearing to determine if Bush would be required to appear in court on her private prosecution.

On that morning, Vancouver Provincial Court officials switched courtrooms from the third to the fifth floor, but left the old location on the public list in the building.

As a result, Davidson was standing outside the third-floor courtroom waiting for the doors to be unlocked. She would have missed the hearing had she not been informed by the Straight about the new location.

Secret hearing held

Once the hearing began, Judge William Kitchen ordered everyone but court officials, Davidson, and Crown counsel to leave the room so what was discussed would remain secret.

Kitchen rejected the Straight's request for a delay to seek legal advice on whether his decision to seal the courtroom infringed on the paper's constitutional right to freedom of the media.

Later, Davidson emerged from the locked courtroom and told people gathered outside that she could only say that the judge had ruled the charges were a "nullity". This meant that in law, they never existed.

Kitchen based this decision on Bush having immunity from prosecution as a sitting head of state.

Davidson applied the following year to B.C. Supreme Court to revive the criminal charges. She also sought a judicial declaration that Kitchen had violated the charter by kicking the media out of his courtroom.

The B.C. Civil Liberties Association appeared as an intervener on August 25, 2005 before Justice Patrick Dohm. Dohm maintained the interim ban without hearing presentations from Davidson or the BCCLA.

The judge's interim order prohibited “publication and disclosure of the name, office or anything tending to identity the proposed defendant in this proceedings and the nature of any proposed charges.”

"He made a gag order," Davidson recalled. "The wording was so rich. You couldn't mention the nature of the accusation, the name of the accused, or anything else that would identify him."

This was despite discussions going on around the world about whether or not Bush was responsible for torture committed by U.S. officials.

Prosecution tossed out of court

Two months later, Kloegman lifted the publication ban. It showed that Kitchen had said in court that he was only going to give Davidson a few minutes to speak. At the time, she cited the Rome Statute, which prohibits immunity for torture.

Kloegman eventually concluded that Davidson's attempt to prosecute the president was an "abuse of process".

In 2006, the B.C. Court of Appeal ruled that Davidson had no authority to continue her private prosecution because the attorney general of Canada did not grant consent for this within eight days of the charges being laid.

The province's highest court did not agree that the proceedings were an abuse of process because it didn't hear arguments on this issue. Instead, its ruling as based purely on technical grounds—i.e. when the clock began on the eight-day period for the attorney general to provide written consent to allow the case to continue.

Davidson told the Straight that this interpretation of the law has throttled future private criminal prosecutions. She insisted that there is a "well-reasoned argument" that the eight-day period shouldn't begin until there is a "real information" put before the court.

"You wouldn't have a case until the Provincial Court judge had reviewed the evidence to see if it was properly founded," she said. "Because in law, with a private prosecution, there is no 'accused'. There is a person's who's a defendant but not an 'accused' until the Provincial Court judge has reviewed it and said, 'Okay, there is enough evidence to sustain a complaint.' "

That's what her first appearance before Kitchen was designed to accomplish had he not sealed the courtroom and declared the charges a nullity.

UN committee criticized Canada's approach 

Meanwhile, the UN Committee Against Torture raised concerns in a 2012 report about Canadian legal barriers to holding torturers accountable.

It recommended that Canada consider amending the State Immunity Act to achieve that objective, as well as "raise awareness of its provisions among members of the judiciary and the public at large".

"In particular, the State party should take all necessary steps to ensure that provisions in the Convention that give rise to extraterritorial jurisdiction can be applied before domestic courts," the report noted.

Davidson pointed out to the Straight that the newest revelations about U.S. torture are just the latest in a long list of damning reports that have not led to any action against Bush administration officials.

In 2011, for example, the U.S.-based Center for Constitutional Rights and the Canadian Centre for International Justice held a news conference in Vancouver to release a 70-page legal brief asking the Ministry of Justice to open a criminal investigation against Bush.

The indictment included more than 4,000 pages of supporting material.

"Through this program, the United States sent individuals to foreign countries and put them essentially in black sites where they were subjected to acts of torture as part of supposed interrogations," the CCR's Katherine Gallagher declared at the news conference. "George Bush, when asked if these men should be waterboarded, responded, 'Damn right.' Even though he made that admission, there was no investigation opened into the act of waterboarding, which our current attorney general, Eric Holder, has acknowledged is a form of torture."

Local protesters sought arrests

Later that year, Vancouver police ignored demonstrators' demands for the arrest of former U.S. vice president Dick Cheney when he visited the Vancouver Club for a $500-per-head dinner. 

At the time, the Straight did an online poll asking readers the following question: Should Canadian authorities arrest Dick Cheney for war crimes when he comes to Vancouver? In the end, 85 percent of the 1,320 respondents said "yes".

Less than a month later when Bush was a keynote speaker at the Surrey Economic Summit, a large crowd of demonstrators called for his arrest.

Those demands were ignored by the RCMP.

Cheney said Bush approved of CIA's techniques

This week, Cheney told Fox News that the Senate investigation into the CIA's torture was "full of crap", which "threw the professionals under the bus".

Cheney also claimed that the report missed the mark when it stated that Bush wasn't fully briefed by the CIA about its investigative techniques.

"Read his book," the former vice president said. "He talks about it extensively in his memoirs. He was in fact an integral part of the program. He had to approve it before we went forward with it."

Then Cheney was asked if knew more than the former president about the CIA's methods for interrogating prisoners. 

"I'm not quite sure how to answer that," Cheney replied. "I think he certainly knew the techniques. We certainly discussed the techniques."