Hello. My name is Catherine Archibald, and I will first be talking about a possible prosecution of Omar for war crimes.
The United States has alleged that Omar has acted in violation of the Law of War. An act in violation of the Law of War is a war crime and is prohibited under Canadian law under the Crimes Against Humanity and War Crimes Act. This act states that any Canadian who commits a war crime anywhere in the world can be prosecuted in Canada, and if found guilty can be sentenced up to life imprisonment. None of the charges made by the United States against Omar appear to be war crimes. However, if the United States is correct and Omar has committed a war crime, he could be convicted in Canada.
Next I will talk about the use of evidence in a Canadian court. Any statements that Omar has made while in U.S. detention, either at Guantanamo Bay or the Bagram air base, are unlikely to be usable in Canadian courts. There are several protections in Canadian law against the use of statements obtained under coercion or duress. First there is the Convention Against Torture, of which Canada is a party, which states that any statements made by a person under torture are not admissible. Canada has implemented this international obligation in its Criminal Code at section 269.1.
However, neither the Convention Against Torture nor the Criminal Code provision prevent statements that have been made through actions that amount to less than torture from being admissible. For example, if statements were made under cruel, inhuman, or degrading treatment they would not be prevented by either the convention or the Criminal Code provision. However, there are other protections in Canadian law that would prevent these statements from being admissible.
First of all, there is the common law confessions rule, which requires that any statement or confession made by an individual must be voluntary. The Supreme Court of Canada has explained that this requirement is to exclude statements that are likely to be unreliable. The Supreme Court has also stated that threats come in all shapes and sizes, and that an oppressive environment alone could make a statement involuntary.
Omar's treatment, which has included stress positions, beatings, threats, long isolations, and sleep deprivation, would almost undoubtedly constitute an oppressive environment, under which any statements made would be inadmissible in a Canadian court.
Finally, the charter guarantees a fair trial in section 11(d) and section 7. The Supreme Court has stated that any evidence gathered that violates certain minimum standards, including evidence gathered using torture, cannot be used in Canadian courts because this would be a violation of the charter right to a fair trail.
My colleague Ajmal will talk about the Youth Criminal Justice Act, which also excludes statements obtained under duress or coercion.
Even though statements made by Omar in his U.S. detention are unlikely to be used in Canadian courts, whereas they could be used in the Guantanamo Bay military commission system, this does not mean that Omar cannot be tried in Canada. Instead, other types of evidence, such as eye witness testimony, could be used to convict Omar in Canada.
I will now turn the table over to my colleague Ajmal.
Thank you.