Good afternoon.
My name is Miguel Mendes. I'll be dealing with the high treason provisions that are outlined in section 46 of the Criminal Code.
Broadly speaking, the high treason provisions of the Criminal Code deal with the worst and most egregious acts of disloyalty committed by a Canadian against this country. They are serious betrayals of national trust. The high treason provisions carry with them a minimum sentence of life imprisonment, subject to the sentencing principles that one of my colleagues will deal with shortly.
Broadly speaking, we've concluded that Omar can indeed be tried, and if the facts alleged against him are proven, he can be convicted of high treason. The attractiveness of this is that it allows Canadians to express in the strongest terms their displeasure with those who betray the trust of Canadians and their loyalty to this country but to be able to do so in a manner that is in keeping with the values and principles of due process under the Canadian Charter of Rights and Freedoms.
The application of the high treason provisions generally is such that it applies to Canadian citizens who commit certain acts enumerated in the provisions, even when they are abroad. Omar, being a Canadian citizen, would fall under this principle. There are two types of enumerated high treason provisions that we believe would apply to Omar. The first is waging war against Canada, and the second is assisting an enemy at war with Canada. I will deal with both of these briefly.
With respect to waging war against Canada, there is no formal requirement in the provision for a formal declaration of war or a conventional type of war. There is nothing standing in the way of a broad interpretation that is in keeping with the modern realities of warfare and the fight against global terrorism.
One hurdle that must be dealt with is the fact that the fire fight Omar is alleged to have been involved in involved American troops. We conclude that this distinction is an artificial one. The evidence on the ground shows that Canada is an integral part of the mission in Afghanistan, that and al-Qaeda operations against international forces are against the group as a whole, rather than against Canadians or Americans exclusively. If all of that were to be proven, we believe that Omar would indeed fall within the provisions, and convictions could be secured.
The second type of high treason that would apply would be assisting an enemy at war with Canada. There are various ways to interpret this provision, but we conclude that the most reasonable way is a broad interpretation. It is one that reads broadly the terms “enemy” and “assist” and creates a stand-alone provision for assisting an enemy at war with Canada.
This broad interpretation for this provision and for the previous one allows a broad and flexible approach that is appropriate to the modern realities of warfare. We conclude that courts would be likely to adopt an interpretation that is broad, rather than sticking to a rigid interpretation that wouldn't take modern realities of warfare into account.
That is my very broad outline of the provisions.
I will pass it over to my colleague.