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

[The Chair, Conservative, Scott Reid]

Order.

We will now begin the 11^th sitting of the Subcommittee on International Human Rights of the Standing Committee on Foreign Affairs and International Development.

Today we have three guests with us. Normally when one introduces distinguished guests, one says something to the effect that they need no introduction, and then proceed to give an elaborate introduction. But in the interests of time, I'm not going to do that. Our guests really do need no introduction, and it would take more time to say their names and who they represent.

Bernard Amyot is the president of the Canadian Bar Association. Lorne Waldman is an executive member of the national citizenship and immigration law section of that association. And David Matas is coming here as an individual.

Before turning the floor over to our witnesses, I want to alert the committee members to a number of things. First of all, on the matter of upcoming business, we have a meeting tomorrow at which, with any luck, we can conclude or at least further discuss our Cuba report. As well, the clerk either has circulated or will circulate a schedule to us that relates both to the ongoing Omar Khadr hearings and the other matters we're looking at. We will have a chance to discuss and flesh out that schedule tomorrow.

Last week when we had our first witness here, I proposed a set of rules. I am proposing that we follow them again and have five-minute rounds of questioning rather than seven-minute rounds. The logic of this is that it will allow us to get through two rounds. If we go to seven-minute questions the first time around, it will effectively mean that everybody will get two questions, except Mr. Marston, who I will note has been the most conscientious member of our committee in keeping his questions short. So that would not be fair. So can I ask that we have agreement to have five-minute rounds both times?

Okay, I'm not seeing any dissent.

Can I also ask that as long as we continue these hearings in one-hour slots, we stick with the five-minute rule for both rounds. That way I won't have to ask every time. Is that cool?

[Some hon. members]

Agreed.

[The Chair, Conservative, Scott Reid]

Great.

The other thing I wanted to alert you to is that I intend, in this meeting, to be firmer with the times than I was the last time around. You may not be aware of this, but I kept watch with my trusty timer the last time, and on four occasions we went over the allotted five minutes by up to two and half minutes. There were fulsome answers to intelligent questions, so I allowed this to occur. But it was with one witness rather than the three we have today, all of whom, in many cases, will have to answer these questions. So I will have to be tougher with the timing.

What I plan to do is this. If you are asking a very long question, then at somewhere between a minute and 90 seconds, I'll remind you that you're taking quite a bit of time. That won't prevent you from using up all of your time in a question, but will just alert you in case you've forgotten. Second, if you get through a question and an answer and you're going for a second question, I'll let you know how much time is left, and then I'll be pretty strict in enforcing or cutting off the time. I know this will not really be fair to our witnesses, and I regret the fact that it is the only way of ensuring that we're going to have any time at all for everybody to get a round.

What I really want to do is to apologize in advance to our witness for the fact that you are very distinguished jurists and scholars and deserve more time, but this is the only time we can make available for you. That's why I'm doing this.

That being said, I'm told that our two presenters from the CBA have a single presentation. Could I ask Mr. Amyot to proceed.

[Bernard Amyot, President, Canadian Bar Association]

Thank you, Mr. Chair, for this opportunity to bring the perspective of the Canadian Bar Association to your deliberations on the Omar Khadr matter.

I'm joined here today, as you said, by Lorne Waldman, a member of the CBA's national citizenship and immigration law section. Mr. Waldman is one of our experts on anti-terrorism and security legislation.

The Canadian Bar Association is a national organization of 38,000 jurists across Canada.

Today, I am glad to present the legal profession's point of view to you. Let me remind you that we are not fighting for an ideology. I would simply like to continue the Canadian Bar Association's long tradition which is to speak out loudly and clearly in defence of the rule of law and of the fair administration of justice in Canada and in the world, neither more nor less.

These are trying times for one of the central, but also one of the most fragile, underpinnings of a democratic society: the rule of law.

What is the rule of law? According to the rule of law, everyone, including governments, are subject to the law. The law itself must be fair and free from the influence of arbitrary power. Our association has a long-standing tradition of staunchly defending the rule of law wherever it is threatened.

Two years ago, the Canadian Bar Association strongly exhorted Canada to ask the United States to stop detaining foreign combatants on its naval base in Guantanamo Bay without any accusation or any fair trial. We maintain that the United States' guarantees of a fair procedure are insufficient. The military tribunals sitting in Guantanamo have no respect for the rule of law and for human rights. Admitting secret evidence, admitting evidence obtained under torture, obstructing the right to consult a lawyer and creating crimes ex post facto, all constitute denials of justice that make void any possibility of holding a fair trial.

The Canadian Bar Association is also greatly disturbed by the situation of Omar Khadr, a Canadian held for six years at Guantanamo Bay. The focus of our concern is the lack of respect for the rule of law. It's easy to provide legal rights to those who are aligned with popular causes. Our commitment to justice is challenged when the individual is unpopular and accused of terrible crimes. It's at times like these that we must speak out to defend those rights. This is what the rule of law requires, that we recognize the rights of all, not just of the favoured few.

In the case of Omar Khadr, we're speaking about an individual who has suffered serious deprivations that violate the international norms to which we, in Canada, are committed. While the charges that Khadr faces are serious, they are no reason to continue to subject him to an illegal process before a U.S. military court. I stress that we are not pre-judging whether Khadr is guilty or innocent—or that he simply walk away if he's returned to Canada. If the crown finds the charges are warranted, he would be subject to the Canadian criminal justice system.

Last August, the delegates to our annual lawyers' conference in Calgary gave an ovation to our president for the pressure he put on the government regarding this matter. Last February, I personally wrote to the Prime Minister to ask once again that Mr. Khadr be repatriated to Canada to undergo a fair trial. At the same time, encouraged by the support of many internationally known lawyers, I let the Prime Minister know that the legal community is exhorting the President of the United States to respect the rule of law and to close down the Guantanamo Bay prison. Our declaration was co-signed by the Bâtonnier of Paris and by the President of the Bar of England and of Wales. In all, 34 bar presidents from various regions of the world signed this common declaration.

The statement said that few operations in democratic countries have shown such a profound disrespect for the rule of law as does Guantanamo Bay. This prison has come to symbolize injustice for some at the hands of the powerful.

Lawyers in Canada and abroad see Guantanamo Bay as a travesty of the rule of law.

Let me make our position clear. We do not condone terrorism; we support a strong anti-terrorism act that protects national security. But we must not accept that human rights be sacrificed at the altar of security. If we sacrifice what we hold dear, our Canadian way of life and our respect for one another, that is too high a price to pay.

We must continue to strive to balance national security measures with individual rights. Canada is the only western country with a citizen still detained at Guantanamo. France, Belgium, Australia, and the United Kingdom have all acted to repatriate their detained citizens.

We urge this government to press for the immediate repatriation to Canada of Mr. Khadr, to be dealt with under the Canadian legal system. Let him answer to any appropriate charges in a fair and open process. There never was and there still isn't any excuse for failing to take this action. I cannot state the case any more clearly.

Thank you, Mr. Chair, for your invitation. My colleague Lorne Waldman and I would be pleased to take questions.

Merci.

[The Chair, Conservative, Scott Reid]

Thank you very much, Mr. Amyot.

Mr. Matas.

[David Matas, Immigration Lawyer, As an Individual]

Thank you very much for inviting me. I want to begin by saying, as Mr. Amyot has said, that human rights belong to everybody. They belong to terrorists; they belong to serial killers; they belong to people simply because of their common humanity.

I want to read you something, actually, that was said by Yuri Andropov, who was head of the KGB and then head of the Soviet Union: “Any citizen of the Soviet Union whose interests coincide with the interests of society feels the entire scope of our democratic freedoms. It is another matter if these interests in certain instances do not coincide” with the interests of society.

That is not a view we should be taking. We should not be awarding human rights to people who are doing good or who behave properly or act inconsistently with the interests of society; they belong to everybody.

I want to draw your attention to particular items. I want to draw your attention to the Foreign Affairs publication, A Guide for Canadians Imprisoned Abroad, which says, “the Government of Canada will make every effort to ensure that you receive equitable treatment under the local criminal justice system. It will ensure that you are not penalized for being a foreigner, and that you are neither discriminated against nor denied justice because you are Canadian”.

That undertaking, as I see it, from the Government of Canada is being violated in the case of Omar Khadr. He is being discriminated against because he's not an American. The Americans are not treated the way foreigners are treated in Guantanamo, and Canada is not ensuring that he would not be treated in a discriminatory way. It's not making every effort to ensure that he would be treated equitably.

Let me read you something else that comes from the American government, U.S. Deputy Assistant Secretary of State Colleen Graffy, on March 12, 2006: “We have no intention of operating Guantánamo any day longer than we have to. If there is another viable alternative to deal with these detainees, then that's something we are obviously always looking at.”

Well, there is another viable alternative, repatriation in the case of Omar Khadr to Canada, and I see no reason, based on this statement, why the United States would not accede to it.

Let me read you something from a British case, because the British have been active in getting their nationals back, and there has also been some litigation about it. In the case of Abbasi, the English Court of Appeals says this: “it must be a 'normal expectation of every citizen' that, if subjected abroad to a violation of a fundamental right, the British Government will not simply wash their hands of the matter and abandon him to his fate.”

I would say that is also true or should also be true of Omar Khadr and Canadian citizens.

We have a number of international standards that, in my view, are being violated in the case of Omar Khadr. Bernard Amyot has referred to some of them. There's the issue of arbitrary detention, because there is no habeas corpus available for the people who are in Guantanamo. This was originally litigated in the United States in the case of Hamden, in which the Court of Appeals said habeas corpus did not apply. The Supreme Court overturned and said it did. The United States then enacted legislation to take away habeas corpus. That again is being litigated through the courts. The federal Court of Appeals has again said that habeas corpus doesn't apply.

The case was argued in the Supreme Court of Canada last December. I noticed that there was an amicus curiae from a number of Canadian professors and parliamentarians, including some of the parliamentarians in this room, and I commend the parliamentarians who joined in that amicus curiae. But this is not just a legal matter and it's not just a parliamentary matter; it's also a government matter, and it shouldn't be necessary for Canadian parliamentarians to litigate in U.S. courts in order for Canadian rights to be respected. The Canadian government should be making representations to that effect.

The guarantee against arbitrary detention is found in the International Covenant on Civil and Political Rights. Both Canada and the U.S. are signatories. Canada is also a signatory to the optional protocol allowing for interstate complaints, and the United States also is a signatory to the optional protocol allowing for interstate complaints. So I hope that would not need to be used, but could be if necessary.

There's the issue of the Convention on the Rights of the Child. Canada has signed and ratified it. The United States has signed it but not ratified it. But there is an optional protocol on child soldiers, which both the United States and Canada have signed and ratified. The U.S. has ratified the optional protocol on child soldiers, even though it hasn't ratified the convention itself. That optional protocol commits states to cooperating in the rehabilitation and social integration of child soldiers. It commits states to taking feasible measures to accord the person all the appropriate systems for their physical and psychological recovery and social reintegration. That hasn't happened in the case of Khadr, but it is an obligation, not just for the United States but for Canada. And Canada, by doing nothing about Khadr, is violating that obligation.

I join with Bernard Amyot and Mr. Waldman in calling upon Canada to meet with the United States and to ask them to repatriate Khadr to Canada.

Thank you very much.

[The Chair, Conservative, Scott Reid]

Before we go to our first questioner, I want to mention to our witnesses--I have been advising all witnesses of this--that the fact that you have come here and presented today does not preclude you from sending further written documentation to us. In the case of Mr. Matas, I was nudging our researcher and reminding him to ask you for the various documents you've been citing so they can be distributed. We have to get them translated when necessary so they can be distributed to all committee members. I will just alert you to that fact.

The first question would come from Mr. Cotler of the Liberals.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chairman.

I have two brief questions for Mr. Amyot and Mr. David Matas.

Mr. Amyot, you said that the prosecution of Omar Khadr denied the rule of law as well as international human legislation.

Could you elaborate on that point regarding his prosecution and trial before the military commission? What do you think will happen if Canada does not intervene on Omar Khadr's behalf?

Mr. Matas, you said that you saw no reason why the U.S. would not accede to a request from Canada. Yet American authorities have been quoted as saying that even if Mr. Khadr is acquitted they still may not let him go.

[Bernard Amyot]

We have very serious reasons to believe that he is not getting a fair trial in Guantanamo.

The list of things that indicate that he is not getting a fair trial is rather long. Mr. Matas has referred to the absence of habeas corpus, which is a fundamental right both here and in the United States. He has had no unfettered access to counsel. There is evidence that his counsel was intimidated or searched. The military commissions rely on evidence from informants that is not reliable evidence, that constitutes double or triple hearsay. There has been a long delay without any charges. At one point there was a possibility of the death penalty. And there is no full disclosure of evidence to his counsel, both his Canadian counsel and Mr. Kuebler, who was here last week.

You may want to add something, but this is an impressive list already.

[Lorne Waldman, Executive Member, National Citizenship and Immigration Law Section, Canadian Bar Association]

The only other point one would add is that the defence counsel doesn't have the right to compel witnesses to come before the commission. So if they get disclosure, and it is double or triple hearsay evidence that's been sanitized through hearsay, they don't have the opportunity of compelling the person who was the originator of the information to come before the military commission so they can challenge the credibility of the evidence. So it undermines the right of Mr. Khadr to a fair hearing.

[David Matas]

I would add to that list. With Guantanamo there are problems of torture. There is evidence, indeed, in the case of Mr. Khadr that he's been tortured. The military tribunals can and will accept evidence elicited through torture, and that is a violation of the torture convention, which is a convention, again, that both the United States and Canada have signed and ratified.

There is a problem with disclosure. The normal disclosure you would expect in a criminal trial is not part of the procedure in Guantanamo Bay in the Khadr proceedings. And it has been a long battle to try to get some minimal disclosure in that case.

In terms of the American statement that they won't let him go, that may well be so in a context in which they are left to deal with him as they see fit. But the equation changes politically as well as legally once Canada becomes involved, because letting him go is different from letting him come to Canada. Once he comes to Canada, he comes under Canadian jurisdiction. Then it becomes a Canadian issue whether we let him go or deal with him in some other way.

We have to keep in mind that when we're dealing with child soldiers, we're dealing with people who are children. I realize that Khadr is not a child now, but he was at the time. Children are victims of adults. It is up to adults to protect children, and it's up to the Canadian government to protect Canadian children, and that's not happening here.

[The Chair, Conservative, Scott Reid]

Mr. Cotler, you have one minute left.

[Irwin Cotler, Liberal, Mount Royal, QC]

Just one question then, and either can answer.

What do you think will happen if Canada does not intervene on Omar Khadr's behalf?

[Lorne Waldman]

I spoke to his counsel yesterday, and he believes they're down in Guantanamo now. The government is trying to seek a date for the hearing, which would be either later in the spring or in the summer. Given the unfairness of the process, he believes there's a very significant possibility Mr. Khadr would be convicted of the charges, which would possibly result in a life sentence for him.

[David Matas]

If I may add one thing here, as I understand it, this is one of three cases going to court. Somebody pleaded guilty, a fellow named Hicks, and there's one other case going to trial. In these procedures, Guantanamo has been used for arbitrary prolonged detention without trial. There's no particular reason why a Canadian should be the first person to go to a full trial when we can deal with him here in a lot fairer and better procedure, if we need to deal with him at all with what's going on in Guantanamo, particularly when the Americans want an end to Guantanamo and to get people out of there.

[The Chair, Conservative, Scott Reid]

Thank you very much.

Ms. Deschamps, you have the floor.

[Johanne Deschamps, Bloc, Laurentides—Labelle, QC]

Thank you, Mr. Chairman.

I will give you a very brief welcome, because the chairman is very strict about the schedule. I thank you very much and I welcome you to our committee.

My first questions are for you, Mr. Amyot. Last week, we received Mr. Kuebler, Mr. Khadr's lawyer. He told us that the military commission in Guantanamo was treating Mr. Khadr as an adult, whereas at the time of his arrest, as we know, he was only 15 years old. How would Canadian law be enforced in these conditions? Would Mr. Khadr be treated as an adult or as a child soldier?

With your permission, I will ask another question right away. If Mr. Omar Khadr had been brought to trial in Canada for a homicide committed at the age of 15, what sentence would he have received, in the worst of cases?

[Bernard Amyot]

I will try to answer your first question, and Mr. Waldman would perhaps answer the second one.

Canada has an obligation pursuant to the United Nations Convention on the Rights of the Child and the Optional Protocol regarding the Involvement of Children in Armed Conflict. As he was 15 years old when the things that he is accused of occurred, clearly he should have the protection that Canadian law provides for children. Canadian laws have provided for such issues and given additional protection to children. This does not mean that he could not be found guilty or taken to court, but he should be given specific protection. I think that Canadian law already provides for this.

[Lorne Waldman]

To answer your second question...I'm sorry, I'm going to do it in English. I apologize.

The Youth Criminal Justice Act would apply as it would in the case of any person under the age of 18 who was charged in Canada with an offence. It's interesting to look at the declaration of principles of the Youth Criminal Justice Act. It says it's intended to prevent crime by addressing the circumstances underlying a young person's offending behaviour, rehabilitating a young person but, at the same time, ensuring that people are brought to justice and are treated in a manner that's consistent with the crimes they've committed.

So the law in Canada that would apply would be the Youth Criminal Justice Act. What would happen is this. Let's say Mr. Khadr is brought back to Canada and is charged with an offence--and there are offences. For example, depending on the evidence, he might be charged under section 83.18 of the Criminal Code, participating or facilitating in terrorist activity. He would then be brought before a youth court judge. The government could say, “Mr. Khadr was 15 and these are exceptional circumstances; we think he should be tried as an adult.”

But the key thing is, in compliance with our international obligations under the child soldier convention, before we make a determination as to whether he should be treated as an adult or a child, a judge has to review the special circumstances of the case and decide whether it's appropriate. That didn't happen in Guantanamo. From the moment Omar was arrested, he's been treated as an adult. He was detained in adult facilities, he was interrogated as if he were an adult, and he's being tried now as an adult. At no point has anyone in this process looked at the fact that he's a youth and decided whether it's appropriate. That's what our criminal justice system would require.

[David Matas]

If I may add one comment, the Convention on the Rights of the Child says: “Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.” Yet this is the sentence he faces in the U.S. Canada, of course, is obligated to respect that.

[Johanne Deschamps, Bloc, Laurentides—Labelle, QC]

Do I have time for another question, Mr. Chairman?

[The Chair, Conservative, Scott Reid]

You have 40 seconds left.

[Johanne Deschamps, Bloc, Laurentides—Labelle, QC]

I will be very brief.

Have you had an opportunity to discuss the Omar Khadr case with colleagues on the international plane, such as bar association presidents in foreign countries, or groups of lawyers? If that is the case, I would like to know what they think.

[Bernard Amyot]

As I said in my introduction, we gathered the signatures of 34 bar presidents across the world. This includes Europe, England, France, Belgium and the rest of the world. They adopted the same position, which is to support the Canadian Bar Association's request to exhort the Canadian government to repatriate Mr. Khadr to Canada. Moreover, our joint letter asks President Bush to simply close down the Guantanamo prison, which has become an icon of the violation of the rule of law.

[Johanne Deschamps, Bloc, Laurentides—Labelle, QC]

Thank you.