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

[Irwin Cotler, Liberal, Mount Royal, QC]

I want to offer a corrective to what my colleague Jason Kenney said, that this policy has been pursued by three governments and three ministers of justice.

[Jason Kenney, Conservative, Calgary Southeast, AB]

I said three prime ministers.

[Irwin Cotler, Liberal, Mount Royal, QC]

Okay. Because as a matter of personal privilege, I want it noted for the record that I spoke and wrote publicly about the illegalities at Guantanamo Bay as early as 2002. In the last three years there has been a dramatic change in what we know about what is happening to Omar Khadr and the Military Commissions Act under which he is being tried, which has only been in effect since 2006. In other words, there are different responsibilities that get imposed on governments because of the different facts and laws that have become applicable in that regard.

I want to ask Mr. Matas one question, because this has come up in discourse on these matters. How does he respond to the argument that terrorist groups such as al-Qaeda do not respect the laws of armed conflict and therefore should not receive the protection of the Geneva Convention?

[David Matas]

Generally, human rights standards apply to everybody, and not just to the people who respect them. That's the point I was trying to make initially. You don't have to go as far as al-Qaeda; you can look at Omar Khadr's own family. They did not respect his rights as a child; they viewed him as an adult combatant from the age of 12, but that's not our standard.

Simply because other people reject human rights doesn't give us a licence to reject their human rights. We're not doing this just for them; we're doing it for all of humanity and ourselves. We say we are not going to degrade ourselves, our standards, and our view of humanity simply because other people have these degrading views. So to me that's not a persuasive argument whatsoever.

[The Chair, Conservative, Scott Reid]

We are out of time on this round.

Madame Deschamps.

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

Thank you very much.

I would like to continue on the same topic. We learned that Mr. Omar Khadr is the only citizen of a western country to be still detained in the Guantanamo prison. Is this true? We hear that people from other western countries who were detained there were released upon the request of their country of origin and following negotiations, among other things, with the American authorities. How is it that Canada is allowing this situation to drag on?

[Bernard Amyot]

I would just like to correct what you said, to the extent that you said that they had been released. They were released from the Guantanamo Bay prison, but they were repatriated to their countries. As I just said, some were found guilty, others were brought to court, others were released, according to each individual case. Repatriating a citizen to his country of origin does not leave him free to break the law. As far as Canada is concerned, the Anti-Terrorism Act could be applied to Mr. Khadr.

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

Mr. Matas.

[David Matas]

There may have been some view that somehow it was good diplomatic relations with the United States to not ask for repatriation, that it might create a confrontation with the United States. But I would say the contrary. The Americans want to close down Guantanamo and empty the place. They have acceded to all other requests from western governments to transfer nationals. My own view is that we would be doing the Americans a favour if we got Omar Khadr off their hands, and I think we should do them that favour.

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

Have the United States detained other child soldiers since the beginning of the war in Afghanistan in 2001?

[Lorne Waldman]

There were other child soldiers, meaning people under the age of 18 at the time of their detention. They've been repatriated without being charged. Mr. Khadr is the only person I'm aware of under the age of 18 who's still in Guantanamo.

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

Is he the only one who was treated differently?

[Bernard Amyot]

This is my understanding.

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

To conclude, do you think that the Canadian government's inaction on the Omar Khadr file could have an impact on Canada's international reputation, given the fact that Canada has always set itself up as a great defender of human rights, of the rule of law, and considering the fact that Canada promoted the treaty prohibiting the use of child soldiers and also signed it?

[Bernard Amyot]

Ms. Deschamps, I will answer you more or less in the same way as Mr. Matas answered you earlier. Canada enjoys an extraordinary reputation on the international scene. We are among the countries that garner the most regard in the world for our respect for the rule of law of course, and for individual rights. I think that this has not changed. As Mr. Matas said, I think that Mr. Khadr's case is an unfortunate exception to the rule.

[David Matas]

I should point out that Human Rights Watch has written a letter to Prime Minister Harper about the Khadr case. It refers to Canada's leadership in this field historically and in human rights generally and urges Canada to respect the rights of Omar Khadr.

As a Canadian, it's an embarrassment to see Human Rights Watch targeting Canada for failing to respect the human rights of child soldiers. I would say this is very definitely a black eye for Canada internationally.

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

To conclude, let me say that I am neither a specialist nor a great legal expert. Basically, I am a woman and I would be very anxious to find out what could have pushed a 15-year-old child... I think that a 15-year-old is not mature enough to engage in a conflict or to understand what is going on. If I were a lawyer and a member of the government, my main concern would be to find out what happened to this child and to protect him.

Thank you.

[The Chair, Conservative, Scott Reid]

Thank you very much.

Mr. Marston, please.

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

Last week the commission ruled pretty much that it wasn't going to accept the fact that--

[The Chair, Conservative, Scott Reid]

[Inaudible--Editor]...government at this point. I apologize for that. I got out of order. That's my big speech about how you'll do the concluding remarks, so we'll hold up on that.

We let it go quite long the last time. I'm going to ask you to keep it down to a three-minute question and answer.

[Jason Kenney, Conservative, Calgary Southeast, AB]

I kept my questions brief. It's for you to keep the witnesses brief, Mr. Chair. Just bear that in mind.

In response to Mr. Cotler's response--I understand he may have written something before--he was part of cabinet. I have great respect for Mr. Cotler, but he joined a cabinet that established the policy now maintained by this government. The basic facts at law have not changed. Perhaps there have been some revelations of it in terms of evidence, but I think it's slightly disingenuous to say that the current government's position is an innovation. It certainly is not.

Mr. Matas, you've said that Canada, by doing nothing, is violating the convention. Could you point out to us the provision of the optional protocol that would require Canada, in this instance, to seek extradition of Mr. Khadr? I don't know what the instrument is--perhaps a penal transfer.

Second, insofar as you have admitted that the protocol does not prohibit the prosecution of alleged child soldiers between the ages of 15 and 18, is that not possibly because not all child soldiers are equal? Would you not admit that a 17-year-old who on his own volition, to pursue an ideological or religious cause, decides to engage in acts of violence as a soldier does not bear the same degree of culpability as, say, a 12-year-old in Sierra Leone who is rounded up at gunpoint, drugged up, and brainwashed? Would you not admit that there are degrees or variations of culpability as it relates to minors who are engaged in armed conflict?

[David Matas]

Maybe the second question should be answered by the Canadian Bar Association, because it was actually they who were talking about this issue, not I.

In terms of the first question, about the provisions of the Optional Protocol to the Convention on the Rights of the Child, I can refer you to article 6(3) and also article 7(1). Article 6(3) states, in part, that “States Parties shall take all feasible measures to ensure that persons within their jurisdiction” are given “appropriate assistance for their physical and psychological recovery and their social reintegration.” Article 7(1) says that “States Parties shall cooperate” in the “rehabilitation and social reintegration of persons who are victims of acts contrary thereto”--meaning the protocol--“including through technical cooperation and financial assistance.”

So basically what it does is require Canada to cooperate with the United States in dealing with Khadr in terms of his rehabilitation and reintegration.

[Lorne Waldman]

In terms of your question, that's precisely why I say that the approach set out in the Youth Criminal Justice Act is the appropriate one. First of all, that act distinguishes between children under the age of 12 and children between the ages of 12 and 18 and has different gradations of responsibility depending on their age.

The most important part about the Youth Criminal Justice Act is that it's up to a judge, at the end of the day, if the crown believes a person should be tried as an adult, to look at all of the circumstances. There may be a 17-year-old who has all sorts of extenuating circumstances that might warrant his not being charged as an adult, but the fact that he's 17, close to 18, is certainly a highly relevant fact that should be considered by the judge when determining whether or not the person should be charged as an adult.

The whole point behind requiring an exercise of discretion on the part of a judicial authority is to require that authority to look at all of the circumstances and decide if in this case it is appropriate to treat this person as a youth or as an adult. Even if he's treated as a youth, under our criminal justice act he can still be sentenced to lengthy terms of imprisonment, but the conditions of imprisonment are different if he's tried as a youth or as an adult. The point is that in Guantanamo they don't make any distinction. They don't look at whether the person is a youth or an adult. Omar has been treated as an adult from the beginning.

All we're saying is that someone should look at his case; look at all of his circumstances, the factors that were pointed out by the woman from the Bloc; and consider if it is appropriate to treat him as a youth or as an adult, looking at all of his experience. Once we decide that, then each process goes in a different direction. The Youth Criminal Justice Act has a hearing, a trial, and lengthy.... I mean, it was changed because people felt it was too soft, so they have much more lengthy detention provisions, but it's done in a different type of facility--or you treat them as an adult.

[Bernard Amyot]

Mr. Chairman, may I add a word or two?

I feel that Mr. Kenney's partisan remarks are regrettable.

If mistakes were made in the past, this does not allow us to tolerate the intolerable today, and I don't think that partisanship will help the resolution of this issue. This is a rule of law issue; this is not a Liberal or Conservative or NDP issue.

Thank you.

[Lorne Waldman]

I agree with you.