Good afternoon. My name is Ajmal Pashtoonyar. As previously noted by my colleagues who spoke about potential charges, my presentation examines the implications of Omar's youth and his prosecution in Canada.
In keeping with Canada's obligation, the Canadian justice system takes into account the age of the accused in administering trials and imposing any resulting sentence. Honourable members, Omar's age at the time of his detention would affect his criminal prosecution in Canada. I will briefly outline this through Canada's international obligations and the Youth Criminal Justice Act applicability, and then I will talk about potential sentencing.
International law contains elemental standards on the treatment of children involved in armed conflict. International law prohibits the recruitment and use of children as soldiers. The optional protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict discourages the recruitment of children under the age of 18 into armed forces of a state and also prohibits such recruitment of armed groups that are not part of armed forces of a state. Both Canada and the United States have ratified the optional protocol. However, under international law, the issue of the prosecution of child soldiers has not been directly addressed. The optional protocol contains no provision on appropriate age of prosecution of child soldiers, the extent of criminal responsibility, and proof of intent for war crimes. However, the optional protocol calls on state parties to demobilize child soldiers and to provide appropriate assistance for their physical and psychological recovery. Moreover, demobilized child soldiers are considered victims requiring rehabilitation and social integration rather than punishment. Any criminal prosecution of Omar in Canada could probably take the above provisions into account.
Honourable members, the Youth Criminal Justice Act sets up a special regime for prosecuting children in Canada. In Canadian law the international standards may be met through the application of the Youth Criminal Justice Act. Under this act, a young person is identified as any person less than 18 years old.
The principles of the Youth Criminal Justice Act provide a broad contextual basis for application of the act. Most important in Omar's case, the YCJA allows for the following three principles: One, the YCJA recognizes Canada's international human rights obligations, including the optional protocol; as a child soldier, Omar requires rehabilitation and reintegration into society. Two, the YCJA ensures participation of the civil society and social community organizations. Three, the YCJA ensures that Omar's prosecution takes into account his background, his unique circumstances, and his special needs in any proceeding.
With respect to jurisdiction, the YCJA provides for young persons to be tried before the youth justice court. Under the YCJA, the youth justice court has exclusive jurisdiction in respect of any offence alleged to have been committed by a young person. In Omar's case, despite the fact that he's 21 years old right now, given that the alleged offence was committed when he was 15, it implies that the Youth Criminal Justice Act would apply to his prosecution in Canada. With respect to evidence, the YCJA further limits the circumstances in which confessions could be used against Omar.
As my colleague Catherine initially mentioned, the Youth Criminal Justice Act would apply to Omar's initial detention in Afghanistan in 2002 and his transfer to Guantanamo detention facilities.
In both of the above circumstances, all statements, oral or written, obtained from Omar were involuntary, were without access to counsel, and were made under dubious circumstances. Such evidence would therefore be inadmissible under the Youth Criminal Justice Act and would likely violate section 7 of the Canadian Charter of Rights and Freedoms.
Lastly, with respect to sentencing, any sentence Omar receives will be influenced by whether he is sentenced as an adult or as a child. In order to approximate a likely sentence for Omar if he is convicted, two possibilities must be considered. The first is whether Omar will be subjected to an adult sentence or to a youth sentence. Under the Youth Criminal Justice Act, it is up to both the crown and the judge to decide which of the two sentencing options is more appropriate. If an adult sentence is imposed, Omar could receive a long sentence for his action. According to section 62 of the Youth Criminal Justice Act, the court must impose an adult sentence if Omar does not make use of his right to apply for a youth sentence. Similarly, the court must order an adult sentence if it decides that a youth sentence would not be sufficient to hold Omar accountable for his offences. Similarly, Omar is likely to spend less time in custody and receive more rehabilitative services if a youth sentence is imposed, this given the fact he has spent almost six years in detention since July 2002.
With this, I'll turn it back to Professor Forcese.