Subcommittee on International Human Rights Committee on May 5th, 2008

[The Chair, Conservative, Scott Reid]

We have a copy of that letter. Thank you.

Mr. Marston.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Gentlemen, welcome today.

I was sitting here thinking, as you gave your expert advice, that it's not often you will find parliamentarians saying that we need your expert advice. We tend to puff ourselves up in our chairs and pretend we know it all. In fact, your evidence here today is crucial for us.

I am old enough to recall the days when we looked at the Kennedy administration as a bright light dawning in the U.S., and it was followed by our own charter. There's a saying that I've developed in the last few years, that common sense isn't common anymore. Common sense should tell everybody that this is a child soldier. He was 13 to 14 years of age when he left our country with his father. He was a dutiful young man who followed his father, as misguided as all of that was, and we understand. We certainly don't support the rhetoric that comes out of the family, but still, he was a 15-year-old boy when he was wounded and nearly killed in battle. Then he found himself in Guantanamo. To judge by the testimony of his legal representative, he wasn't separated from the adults but was confined with them.

I have to wonder if there are similarities between this case and the Maher Arar case—the treatment, detainment, the suggestion of the American government--

[The Chair, Conservative, Scott Reid]

Mr. Marston, I hate to do this when you are doing the talking, but you are being more wordy than you normally are.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

I'll come right to my point. Do you believe the Canadian government is trying to make an example of this young man?

[Bernard Amyot]

I believe you should ask the Prime Minister. One thing for sure is that the rule of law is contravened in a severe fashion in Guantanamo, and a Canadian citizen has been languishing there for almost six years.

But I still have great hopes that the Prime Minister and the Canadian government will realize that this is an important issue for all Canadians, and that he will speak to President Bush to ask for the repatriation of Mr. Khadr to Canada. He should not ask for him to be set free. But he should receive a fair trial the Canadian way, with due process, access to counsel, and the proper disclosure of evidence. If he's charged and found guilty, he will be punished in Canada. I believe we can do that here in a fair way.

[David Matas]

As I understand it, Canada exercised leadership in negotiating the optional protocol on child soldiers. If I remember what I read correctly, Canada was the first state to sign the optional protocol. So historically Canada has been up front in dealing with the problem of child soldiers. I would say that with the Omar Khadr case it has fallen behind and abandoned the leadership it once had. I believe it's important that it resume its leadership role—not just for the sake of Canada but also for the sake of human rights and the battle against abuses of child soldiers.

[The Chair, Conservative, Scott Reid]

You still have a minute and a half.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

I was assuming I had used up most of it.

It's a hard place to find ourselves when we're looking at the boy in the circumstance he is in, but it is an even harder circumstance for what's happening to Canada's reputation worldwide. We've had our Prime Minister pronouncing on human rights and--I agree with you--it is time that he has to step up and he has to ask for this boy's return.

I'll leave it at that.

[The Chair, Conservative, Scott Reid]

Are there any comments?

[Bernard Amyot]

We concur wholeheartedly.

[David Matas]

I guess I could make this comment. Obviously, in some respects, the government has been very good on human rights. They have been good in the Middle East; they have been good on China. There are areas where they deserve commendation. But this is an area that I would call an unfortunate lapse, and I would urge them to maintain a consistently high level of respect for human rights.

[The Chair, Conservative, Scott Reid]

Mr. Kenney, you're next.

[Jason Kenney, Conservative, Calgary Southeast, AB]

Since the discussion has veered somewhat into political territory, I would just add, as an observation, that we should speak of the Government of Canada more so than the current government, because the position of the Government of Canada with respect to Mr. Khadr has been absolutely consistent since his original detention under three different prime ministers and several ministers of justice. One member of this committee sat around the cabinet table when that policy was crafted, I believe.

Mr. Matas, you said that Mr. Khadr has been subject to arbitrary prolonged detention, and the other witnesses have testified that there have been unreasonable delays in his case going to trial. Is it not true that there has been a series of procedural motions in the American judiciary that have effectively delayed his trial and that of others accused at Guantanamo Bay in cases such as Rasul v. Bush, Hamdan v. Rumsfeld, Rumsfeld v. Padilla, Padilla v. Hanft, all of which resulted in congressional amendments to the Military Commissions Act. Would it not be contextually more honest to point out that the delay in trial is at least in part a result of these procedural delays, these motions?

[David Matas]

That may well have been the cause, but I'm not sure that is a sufficient justification for the delays. Those cases were cases to determine whether habeas corpus was available. It was the position of the government that habeas corpus was not available. Of course, in any piece of litigation there's always the possibility of legal challenges from the defence--and you see that once cases start--but simply because the defence may raise an issue to delay the trial is not a sufficient justification, I would say. The case could have proceeded earlier. It's not as if the case started earlier and then was stopped because of these matters. What happened was that a lot of these matters were litigated before this case even started, and the case could have started in advance of them.

What you're pointing to is other problems with the system. The fact that there is no habeas corpus, in itself, isn't somehow an excuse or justification for the delay of the trial of Mr. Khadr, in my view. It just compounds the problem. It is an added unfortunate facet of the case.

[Jason Kenney, Conservative, Calgary Southeast, AB]

Mr. Chairman, in light of the gravity of these rounds, I'm going to ask a small series of questions, and hopefully witnesses can give compressed answers.

Can any of you point out to me a provision, in the optional protocol to which you referred, that prohibits prosecution of so-called child soldiers who committed their offences between the ages of 15 and 18? If such a provision exists, would it not then preclude Canada from prosecuting Mr. Khadr, as you have suggested we might choose to do?

The CBA has indicated that Mr. Khadr could face due process under the Canadian law. Precisely what crime would he be tried for? He didn't kill a Canadian abroad.

Can you specify or provide evidence of what degrading treatment he has faced in Guantanamo Bay?

Those are my questions.

[Lorne Waldman]

In terms of the question with respect to the child soldier, it's not our intent to say that it would be a violation of the convention. I think it might be a violation of the spirit of the convention, which encourages rehabilitation. But there's no specific provision that precludes prosecution. What the convention requires is that before a child soldier is prosecuted he is treated as a youth, and that there's a determination as to the appropriateness of proceeding with the trial. This is precisely the way the Canadian legal system approaches young offenders under the Youth Criminal Justice Act, which is that you are charged as a child, you are processed as a youth, and the judge then determines whether it's appropriate for you to be prosecuted as an adult or not.

I think that answers the first question.

In terms of what things Mr. Khadr could be charged with, with respect to the issue of whether or not he killed the soldier, in light of the evidence that has come out--albeit by mistake, through documents that weren't supposed to be disclosed but were--I think there's now serious doubt as to whether there is any evidence that Mr. Khadr actually killed anyone.

Obviously, without knowing the particulars of all the evidence, just based on media reports, I would say that as a Canadian citizen, Mr. Khadr can be charged under the provisions of our Criminal Code--for example, under section 83.18, facilitating the commission of a terrorist offence. Those provisions of our Criminal Code apply to terrorist offences committed anywhere in the world by a Canadian citizen, and we would have universal jurisdiction over those offences. Mr. Khadr could be charged if there were evidence, and based on media reports, it appears that there might be evidence of facilitating a terrorist act.

[Bernard Amyot]

May I add something on this, Mr. Kenney?

We know through the media and what has occurred at the Supreme Court of Canada that CSIS has gathered a lot of information about Mr. Khadr. The government has a lot of information about this and is probably in the best position to determine whether he could be charged here with that evidence in hand. I find it a bit ironic that the Minister of Justice has advocated before the Supreme Court of Canada for the non-disclosure of these documents to Mr. Khadr's counsel. But if they have evidence, it's in their hands already, and they could use it to charge him pursuant to the Anti-terrorism Act.

[David Matas]

I haven't actually looked at the age restrictions, if any, on the Crimes Against Humanity and War Crimes Act, but that act, if it's age appropriate, would give us jurisdiction as well as the Criminal Code, because it's a universal-jurisdiction offence if Mr. Khadr is guilty of war crimes, which is the nature of the allegation.

In terms of abusive treatment, let me read you something from a Human Rights Watch report. It says:

In Guantanamo, Khadr has been held in prolonged detention in solitary confinement. He has told his lawyers that he was also subjected to abusive interrogation. He said his interrogators shackled him in painful positions, threatened him with rape, and used him as a “human mop” after he urinated on the floor during one interrogation session.

So there is some evidence of abusive treatment in his case.

[Jason Kenney, Conservative, Calgary Southeast, AB]

There are allegations, but there's not evidence.

[David Matas]

Well, his statement is evidence. If he's testifying about something that he heard, it's an allegation. If he's testifying to something that happened to him, it's evidence.

[The Chair, Conservative, Scott Reid]

I think the point Mr. Kenney was working at was that it's not proof. But whatever the case is, we are over on the time.

We'll continue with Mr. Patry, who is next. Because we went over on that session--it was hard not to do so in order to give fulsome answers--we'll take a little bit out of the time the government gets on the next round.

Mr. Patry, please.

[Bernard Patry, Liberal, Pierrefonds—Dollard, QC]

Thank you very much, Mr. Chair.

Thank you, Mr. Amyot, Mr. Matas and Mr. Waldman.

We know that many countries have succeeded in repatriating their citizens who were detained in Guantanamo, and I would like to know what happened with these detainees, on what basis they were tried and if they were acquitted. We should indeed find out what happened to them after the United States kept them for a fairly long period of time in Guantanamo.

Mr. Matas, I want to understand if I heard you properly when you said the Americans said they would not free Omar Khadr even if he is acquitted. Is that the reality? How can they do this?

[David Matas]

I was just repeating something Mr. Cotler said.

That's what this litigation about habeas corpus is all about. The only way they can keep him in detention is if there's no ability of the courts to supervise that detention. He can get out only if the courts can say they have to let him out. This litigation about habeas corpus is litigation about whether or not the courts can say it. Right now the ruling of the United States Court of Appeals is that the courts cannot say that, that the courts cannot tell the American government to let anyone out of Guantanamo.

That's what's being decided now in the Supreme Court of Canada. It was argued in December 2007, and there will probably be a judgment in June of this year.

[Bernard Amyot]

Mr. Patry, I will try to answer your first question regarding what happened in other countries. According to the information we have, people have been repatriated to four countries, namely England, France, Belgium and Australia. In some cases, they were indicted and condemned; in other cases they were indicted and acquitted; and in other cases, they were released. This changes according to the countries and the individuals involved. This does not mean that repatriating people to their country of origin will necessarily make them as free as the wind and that they will not be subjected to the justice of their land. We must remember this.

Repatriating Mr. Khadr to Canada does not mean that he will be released. As I just said, CSIS and the government have information, and Mr. Khadr could very well, as my colleague Waldman said, be prosecuted pursuant to certain provisions of the Anti-Terrorism Act.

[The Chair, Conservative, Scott Reid]

You still have two minutes, if either of you would like to use that time.