Evidence of meeting #15 for Subcommittee on International Human Rights in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was khadr.
A recording is available from Parliament.
Bloc
Claude Bachand Bloc Saint-Jean, QC
For those of you who don't understand French, you will need your interpretation device, as I will be speaking in French.
First of all, I want to congratulate you on your work and especially on the arguments you have presented.
I would like you to imagine for a moment that you are in court. I have no formal legal training, but imagine that I am a judge and that I have just heard your arguments. If I am not satisfied, I have to challenge you and that is what I intend to do.
Perhaps you prepared your case a few weeks ago. As you undoubtedly know, the Supreme Court of Canada has just handed down a very important ruling that you need to consider as you argue you case. The court has just ruled that Canada violated the rights of Omar Khadr when it turned over the transcripts of his interrogation to US officials, something that it was not supposed to do.
Still according to the Supreme Court, Canadian officials abroad are bound to uphold the Canadian Charter of Rights and Freedoms, which means that if international obligations run counter to the Charter's provisions, then the Charter should have precedence.
Your arguments must take into account what the US Supreme Court said about Guantanamo Bay, namely that it is illegal to deny inmates the right to challenge their incarceration before a regular US court. That is an important finding. The US Supreme Court also held that military commissions violated the Geneva Conventions. That is also a very important detail.
I'd like to hear your views on my party's position, namely that Omar Khadr should be afforded consular services in line with the Supreme Court decision that he should be returned to Canada and given a fair trial. In addition, to tie in with what Mr. Pashtoonyar said, he should be tried before a youth court judge, since he was only 15 years old at the time he committed the acts that lead to his incarceration.
It is important for me to challenge your arguments.
Conservative
Bloc
Claude Bachand Bloc Saint-Jean, QC
I'm finished. I would now ask the lawyers to convince the judge that their arguments are valid.
Bloc
Claude Bachand Bloc Saint-Jean, QC
I would like these people to respond. They are the ones who brought forward their positions. I'm listening before sentencing or deciding what to do in court.
Student, Common Law Section, University of Ottawa, As an Individual
Perhaps a clarification of the question, please.
Conservative
Student, Common Law Section, University of Ottawa, As an Individual
Yes, could you please specify the question?
Bloc
Claude Bachand Bloc Saint-Jean, QC
I will say it in French. Omar Khadr is entitled to consular services, in keeping with the Supreme Court decision I talked about. Based on the reasons I mentioned, he should be extradited to Canada where he can get a fair trial. His case should also be tried in a youth court because he was 15 years old when he committed the alleged offences.
Do you agree with my assessment?
Student, Common Law Section, University of Ottawa, As an Individual
With respect to the issue of consular services, there was domestic practice that afforded Omar Khadr those types of services that a Federal Court judge found to be in violation and ordered, on that regard, an injunction against further interrogation. That's the authority for that issue.
With respect to the issue of further actions on the Canadian government and whether that is supported by the Supreme Court's recent decision, whether the source is the charter or Canada's international legal obligations, yes, I think you're right, and most people would agree, that you can make an argument for positive obligations, for more actions by the Canadian government. Professor Forcese has pointed out that as a matter of international legal law people might disagree, but that politically and morally there have been precedents from all of our allies in that regard.
So the decision is going to be debated, the decision that came out on Friday, but at minimum, yes, the Supreme Court unanimously is saying that he is afforded disclosure rights in order to meet the case against him. And I think as Canadians we would view that type of right as much better exercised in Canada under our justice system, under due process, recognized by all citizens, regardless of political ideology.
NDP
Wayne Marston NDP Hamilton East—Stoney Creek, ON
Thank you, Mr. Chair.
I want to thank you all for the work you've put into this, because I think this is a very significant case and is very important to the future law of this country, when we pause to think about it.
In fact, two weeks ago we had what some of us call a watershed event in this committee when Senator Roméo Dallaire spoke to us on his view of the rule of law. There was some pushback, and it was quite interesting. He stated that when a state starts to pick and choose who deserves protection under the conventions set by international bodies with respect to human rights, then they themselves become the same as groups who have no respect for the rule of law or human rights protection at all. I think that statement in itself has huge ramifications if people just pause and think about it in terms of the Khadr case.
The evidence is clear. Omar Khadr was 15 years old when he was wounded and captured.
I actually would put this to Mr. Forcese: Do you have an opinion as to why the Government of Canada, after six years, would refuse to recognize Omar Khadr as a child combatant? Is it because that would position him relative to the protocol at the UN, where they look to repatriate, rehabilitate, and reintegrate people into society?
It's inexplicable. Those of us who are sitting on this side of the table and hearing the responses from the government side are having a great deal of difficulty wrestling with this particular point.
Prof. Craig Forcese
I don't purport to have any privileged insight into what animates the Government of Canada. I can say that there's a certain investment in the current policy. There's been inertia for a number of years now, and that inertia tends to continue just by nature of consistency.
I will say that I agree with you that there are extremely important implications at play in relation to Omar Khadr. The government's line has been that the charges against Omar Khadr are serious and therefore they need to play out in the United States, even in a system that most international observers would agree is inconsistent with international law.
The concern I have that goes beyond Omar Khadr is if the line is that the charges are serious and therefore we're not intervening with energy, and if we are to gauge the energy of our response according to the seriousness of the charges brought against an individual, that's an invitation for foreign governments, if they want to maltreat a Canadian, to concoct the most serious charges imaginable and therefore deter a Canadian intervention. I think that's the wrong message to send, in part because we all know there are a number of Canadians now who have found themselves in serious difficulty with foreign authorities, and I think we need to set a strong precedent that the Canadian government will intervene with vigour to defend the interests of those Canadians overseas.
NDP
Wayne Marston NDP Hamilton East—Stoney Creek, ON
We have other cases--Husein Celil in China right now. We just had the Brenda Martin case. If you listened to the story of the Brenda Martin case from the Mexican side, she would have been hung out to dry almost immediately. Do you believe any other Canadian citizen, other than Omar Khadr, in the same circumstances would be treated this way? There's a certain implication as to the guilt of the family, so to speak.
Prof. Craig Forcese
I have no doubt that the notoriety of the family has tainted the case, to the extent that he has been an extremely unpopular figure who is very divisive. The level of vitriol that one sees, for example, when Omar Khadr stories appear in The Globe and Mail in those commentaries that people can enter.... There's a very acrimonious debate.
It's also the case, however, that whenever someone is accused of terrorism or terrorism affiliation there is a rush to judgment, I think, especially in circumstances where that person is incarcerated overseas by an ally in the campaign against terrorism. I think we have to be very wary of that propensity and extend diplomatic protection and consular access with vigour, irrespective of the nature of the charges against the individual or the family from which they come.
Conservative
The Chair Conservative Scott Reid
Thank you, Mr. Marston. Thank you, Professor Forcese.
The next on our list is Mr. Sweet.
Conservative
David Sweet Conservative Ancaster—Dundas—Flamborough—Westdale, ON
Thank you very much, Mr. Chairman.
Thank you for all the work you've done.
They are very serious charges that Mr. Khadr is facing, the killing of a medic, Christopher James Speer, and partially blinding Sergeant First Class Lane Morris, and I have a couple of questions on the submissions that were made today.
My first question would be for Ms. Archibald, and certainly Mr. Forcese can chime in if he would like to. Isn't it true, with the variations that we heard and the complications with international law and the Youth Criminal Justice Act, that these very serious charges would have a much greater degree of complexity to be able to prosecute in this country?
Student, Common Law Section, University of Ottawa, As an Individual
I'm sorry, could you repeat the question?
Conservative
David Sweet Conservative Ancaster—Dundas—Flamborough—Westdale, ON
Isn't it true that these charges would have a much greater degree of complexity to be charged and tried in this country?
Student, Common Law Section, University of Ottawa, As an Individual
Certainly we do not have at our disposal today all the facts that the U.S. government has within its possession, so we based our report on what is publicly available. Yes, certainly these are complex charges.
What my presentation focused on was the fact that any evidence extracted from Omar and any confessions he made in Guantanamo Bay or Bagram air base are unlikely to be admissible in Canada because they are likely to be found to be obtained under coercion or even torture.
Conservative
David Sweet Conservative Ancaster—Dundas—Flamborough—Westdale, ON
We've had witnesses in the past, and you've mentioned child soldiers today. Most of us are familiar with Ishmael Beah's book on his experiences in Sierra Leone. Do you see any uniqueness in this case compared to looking at child soldiers from Sierra Leone who are taken by violence and sometimes forced to actually assassinate their own families in order to terrorize them, scare them, and are forced to take drugs in order to disturb their consciousness and keep them in bondage? Do you see any uniqueness in this case where a son went with his father over to a place and threw a grenade at two soldiers who were engaged in counter-terrorism activities?
Prof. Craig Forcese
Can I circle back to complexity and then address the comparative child soldier issue?
Just on complexity, if your standard of complexity is that the prosecution in Canada would be complex because of all these variables my team has been describing versus what goes on in a military commission, the answer is yes, of course, because the military commission has pared away complexity by ignoring the child soldier issue and by allowing the admissibility of evidence obtained through cruel, inhuman, and degrading treatment. Yes, it would be more complex, because we are adhering to the rule of law, both domestic and international.
On the issue of child soldiers and the comparative gravity of being a child soldier, and is Omar Khadr a unique case, the implication being that perhaps Omar Khadr deserves a different treatment, my answer is no, in the sense that from a legal perspective a child soldier is a child soldier is a child soldier. Obviously the circumstances in Sierra Leone and other places, like Uganda, are horrific. The circumstances in which Omar Khadr found himself were horrific, albeit in a different way.
The idea of variability in terms of culpability is captured in our law, in the sense of sentencing under the youth justice system. You can be sentenced as an adult, or you can be sentenced as a youth. So there is room for a court to contemplate varying levels of culpability and to take into account the difference. That is the point we're trying to make. And that compounds the complexity, but again, with complexity comes nuance.
Conservative
David Sweet Conservative Ancaster—Dundas—Flamborough—Westdale, ON
Mr. Harrington's submission was that al-Qaeda would be a recognized state, and Mr. Richmond and Ms. Crummey's presentation said that al-Qaeda would not be recognized as a state. So even in your own submissions....This has little to do with whether the process goes here or there. In your own submissions there is a high level of ambiguity in how we would deal with him once he got here.