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.
Student, Common Law Section, University of Ottawa, As an Individual
As I tried to emphasize, the definitions I'm working with using the Foreign Enlistment Act are taken from its British predecessor, which actually originates around 1812 and then was revamped around the 1870s, then was received in a Canadian law in 1936. So you're using the same terms and definitions from about the 1800s, which have very little to do with our modern legal systems and international norms. For example, when I say “foreign state”, I don't mean in the technical sense recognized in international law at present, which is incorporated into Canadian law under the Anti-terrorism Act. So essentially we are dealing with different legal timing and different legal language according to that timing.
Yes, it sounds very schizophrenic, and possibly it is, but it is contained within the act itself and doesn't move outside in terms of the definitions, whereas the definitions presented by Ms. Crummey and Sean Richmond.... It is entirely consistent.
Prof. Craig Forcese
Just to reiterate, the definitions vary. The definitions under the Foreign Enlistment Act are a much broader definition of state than the more intuitive meaning we find under the Criminal Code. So we're four-square with the law. It may not make a lot of sense in terms of logic, but we lie within the definitions that are found within these laws, so that apparent inconsistency really doesn't exist, in our view.
Conservative
The Chair Conservative Scott Reid
Thank you, Mr. Sweet.
We have a basic administrative problem here with time. We had given ourselves until a quarter past in order to have two rounds, but as Mr. Silva has just pointed out to me, that will only allow a second round for a couple of our people here instead of for everybody. He had suggested to me that as an alternative I could simply ask a question and then wrap it up, but that's not what I'm going to do, unless that's the will of the committee.
The choices we have are to extend a bit further so that we can do a full round or just wrap it up here. What is the general will of the committee as a whole? I heard one person for extending. Anybody else?
Conservative
The Chair Conservative Scott Reid
Okay. It sounds like that's the approach, in which case we are back for our second round, and we will be starting with Mr. Silva.
Conservative
The Chair Conservative Scott Reid
Mr. Silva, I apologize. This is my mistake. I had forgotten to mention this to members of the committee.
We have a scheduling issue that I would also like to ask your permission to fit in at the end, if I could. We just have to look at whether we should be having a meeting to get into reviewing the Khadr hearings on Wednesday. We hadn't actually had an agreement on that. Is it okay if we stick that on the end and go in camera to deal with that? If not, we can try doing it tomorrow, but there will be a scheduling problem. Is that all right to do at the end?
Liberal
Mario Silva Liberal Davenport, ON
I've mentioned before--and it may be in the brief--the importance of securing Mr. Khadr's repatriation back to Canada and how we have obligations to do so, both domestically and internationally.
I am quite concerned--and I think I've raised it several times in this committee--about the action that is taking place in Guantanamo and about the whole issue of the military commission that was set up by presidential orders, which many members of Congress are even calling into question at this very moment. Certainly many international human rights lawyers have questioned whether there is any legal precedence for this. There are those, of course, who argue that presidential orders during a time of military conflict do override these international binding agreements, but that's a very small minority of people who hang around the Bush White House. It's certainly not the view of the wider international community.
A series of decisions have been made by a whole host of well-known international judicial bodies that have said, in fact, that there is serious concern that torture is taking place in Guantanamo. This whole issue of secret trials and secret evidence is very troubling, and I think that's the one reason we have great concern.
We are, as indicated before, the only country in the western world that still has one of its citizens there. So we do have, I think, beyond just a moral obligation; I think there is a legal obligation to in fact fulfill and to bring Omar Khadr here to face trial. This is the issue that needs to be highlighted, because there are many who are spreading the false rumour that we are asking him to come here and basically not face justice. But we are very much concerned that there is a great injustice taking place by the actions of the U.S.--the Bush administration, I should be more specific. Even the present presidential candidates, such as Barack Obama and Hillary Clinton, have raised concerns and have said that they will in fact close Guantanamo, because they understand quite clearly that it is operating outside of the scope of the legal norms of procedure.
I think you have done a great job in terms of outlining what he could face once he gets here, and I think that needs to be stated again. If there's anything else you'd like to add in terms of what further action could be done, I certainly would like to hear it from you.
Prof. Craig Forcese
Maybe I could make one other observation.
The first thing is that we agree with you completely that repatriation doesn't equal impunity. It's not that Mr. Khadr will be repatriated and there will be no prospect of criminal charges or other measures being taken against him. I know that parlance has been out there. The motivation for writing this report was to query and test that assumption, and we find it has no truth to it.
I will add that on top of the prospect of criminal prosecution, there are provisions in our criminal law, known colloquially as peace bonds, one of which is found in section 810.01 of the Criminal Code in relation to terrorism offences. It permits a court, in circumstances where the government has reasonable fear to believe a person may engage in terrorism offences, to impose conditions on their behaviour. We're seeing these peace bonds used in relation to some of the individuals in that subset of the Toronto 18, who have now been released subject to peace bonds. There are restrictions on their behaviour, who they can associate with, curfews, etc. So there are measures short of criminal prosecution that would be available for the Government of Canada were it inclined, not necessarily to prosecute Mr. Khadr, but to impose some restrictions on his behaviour were he repatriated.
I raise that with you just so you are aware of it.
Conservative
Bloc
Claude Bachand Bloc Saint-Jean, QC
I don't know whether you've had time to read the Supreme Court's decision. This time around, my questions will be a little more specific. First, do you think the Supreme Court is implying, by its decision, that the government should do more than just turn over the transcripts to Khadr's defence lawyers? In your opinion, does this ruling give Omar Khadr another argument with which to defend himself, aside from the transcripts?
I would also like to know what you think about the US military commissions. Earlier, I said that the US Supreme Court had ruled on the legality of these military commissions. Do you believe that these commissions meet international law detention, prosecution and fair trial standards?
In your opinion, was the Supreme Court sufficiently clear on the means of guaranteeing compliance with applicable international law standards? In other words, do you believe political authorities must comply immediately with the court's ruing? I imagine that you will say you need to read the decision carefully and that you will reserve your comments until later.I will understand if that is the case. However, on reading the decision, perhaps you will spontaneously say that it implies the government should do more than just turning over records. You might have a lot to say.
Try to look beyond the traditional legal way of thinking. You are here before a parliamentary committee. I am not speaking as a judge any more. In its ruling, did the Supreme Court implicitly call for the government to do more than just turn over records?
Student, Common Law Section, University of Ottawa, As an Individual
Thank you so much.
It's important to note that what the Supreme Court did was totally rely on the U.S. Supreme Court decision of Hamdan v. Rumsfeld, which came out in July 2006. Literally, prior to 2006, Guantanamo was illegal, according to the United States and Canadian supreme courts.
The U.S. Congress swiftly moved to pass the Military Commissions Act in 2006, prior to the congressional mid-term elections, before they lost the Congress. We know that the Military Commissions Act still gleans information from the detainees through a course of measures. We know that it provides for the evidence to be gleaned from hearsay. And last February, after our research was published, more than 34 law societies from around the world called the Guantanamo process an affront to the rule of law and called upon the Prime Minister to seek custody of Omar Khadr.
What the Supreme Court did was put the onus on the government, and the assertion they used was that he was being treated humanely, so let's deal with the legal process there. It clearly puts the onus on providing what legal basis we have to continue that incarceration and to let that trial proceed.
Student, Common Law Section, University of Ottawa, As an Individual
I was wondering whether I could respond to your second question about the details of the military commissions process. Ajmal talked about some of them.
Even after the amendments that occurred in 2006, many of the central features of the new military commissions process are still contrary to what I would say is the general consensus regarding the rule of law. Ajmal pointed to one example, which is the admissibility of hearsay evidence, which in Canadian and American courts is not normally applicable, subject to certain exceptions, but is a broad right under the military commissions process.
Another one that I think is quite troubling is that previously, before the amendments, defence counsel didn't have access to materials about Omar and the facts and so on. Now they do have access, but it's only at the trial. They are not allowed to see things beforehand or to vet the information in any way. The material they see at trial is already blacked out on national security grounds.
The problematic point in addition to that is that the judge will see the unedited versions. So the same person who is going to try Omar will see the unedited versions of the materials, which will then be blacked out and handed to the defence.
A similar point is one Mr. Silva brought up earlier, the prospect of indefinite detention even if there is an acquittal.
Finally, it's expressed under the Military Commissions Act of 2006 that detainees cannot rely upon or claim their Geneva convention rights. Those four, right there, we think are quite serious affronts to the rule of law, and I think there's an emerging consensus on that.
Conservative
The Chair Conservative Scott Reid
Thank you. That completes this question and answer session.
Mr. Poilievre, you're next.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
When did Mr. Khadr go to Afghanistan? When did he leave Canada? Anyone...?
Student, Common Law Section, University of Ottawa, As an Individual
I think I can respond to that question. Do you just want to know when Omar went to Afghanistan the first time? There are some facts indicating that they came and went back.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
When did he go the last time? Ball park--just the year is all I need.
Student, Common Law Section, University of Ottawa, As an Individual
It was 2002. He was there in 1996—
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
It's just the last time he left Canada to go there. So it was 2002.
Student, Common Law Section, University of Ottawa, As an Individual
It was, as far as I understand.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
Okay. According to your testimony, he was there to fight on the side of al-Qaeda and the Taliban.
