Subcommittee on International Human Rights Committee on May 27th, 2008

[Jason Kenney, Conservative, Calgary Southeast, AB]

If he can't be prosecuted in Canada under our domestic criminal law--as you've testified--what would happen to him, in your judgment, if he were to be transferred back to Canada?

[Howard Anglin]

I'm sorry, did you say if he can or can't?

[Jason Kenney, Conservative, Calgary Southeast, AB]

If he cannot be prosecuted under our criminal law.... I don't see what charge could be brought against him, because the charges are that he killed an American in Afghanistan, and I'm not aware of any domestic Canadian laws that would allow us to prosecute for what happened abroad to a foreign citizen. So if he were to be repatriated to Canada, what do you think would happen to him?

[Howard Anglin]

Again, I'm not a Canadian-trained lawyer; I can't speak to the Canadian law.

I didn't testify that he couldn't be tried in Canada. I think it would be inappropriate to try him in a civilian court; he's a military detainee. I wish I could speak to it. I really am not familiar enough with Canadian law. I couldn't say whether he could or couldn't be prosecuted under Canadian law. I'm sure there would be great difficulties--certainly evidentiary difficulties--that are taken into consideration in a military tribunal that I presume wouldn't be taken into consideration in a Canadian civilian court. To me, that would be the biggest bar to any conviction.

As to what he could be charged with, I presume Canada has some statutes that relate to aiding and abetting terrorism. Perhaps he could be charged under those, but you would have to ask a Canadian lawyer.

[The Chair, Conservative, Scott Reid]

That concludes the time for this round.

Mr. Marston, you're going to have to be our last questioner, so please go ahead.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Obviously, from the comments you just made, you didn't get a chance to see the testimony from Professor Forcese yesterday. He had some legal students with him, and he was going through those statutes of Canadian law that would be applicable if Mr. Khadr were brought back to Canada. I appreciate the fact that you were not even attempting to step outside of your expertise.

Consistent with the testimony we had yesterday, if he were brought back here, do you believe--and this may be a stretch here--that within the norms of Canadian law as you understand it to be, if Mr. Khadr were charged in Canada, the process in Canada would supply the sense that justice was satisfied by going through the Canadian court system?

We have a situation in which the significant difference, I think, between us and some others is the recognition that this person was a child combatant. We do have a grey area around the age of 15. I'm not trying to refute what you're saying, but if that person were brought back to Canada and treated under Canadian law as though the offence had taken place at the age of 15, would you see that as being an area in which the Canadian public would be satisfied that justice was served?

[Howard Anglin]

I think it would require a poll to determine whether the Canadian public would think it had been served. I've no doubt the Canadian courts meet the requirements of the Geneva convention. I'm certainly not going to debate you on that point. I think it would be inappropriate, as I said, given the way battlefield detainees are captured and the lack of evidence taken at that time, to then try to obtain a conviction based on the sort of evidence naturally obtained when one captures someone on a battlefield, as opposed to at a crime scene, with careful documentation and witness statements and evidence.

I don't disagree with your point that if he can be tried in Canada, I'm sure the Canadian public will be satisfied, but I don't think it alters the fact that the process he's currently undergoing is just as sufficient to meet international legal requirements. So if Canada is trying to make a determination based on whether he's receiving insufficient process or not, I don't think there's a difference there.

[The Chair, Conservative, Scott Reid]

You still have a little bit of time, Mr. Marston.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

There's one thing that's a little bit outstanding for me, and that is Camp Iguana and the fact that the other--for lack of a better term--“child combatants” in Guantanamo were all segregated there. Can you offer any insight as to why you think this individual, who was 15 when captured and 16 when he got to Guantanamo, would be excluded?

[Howard Anglin]

I have no idea. I really don't. I postulate, but it's purely a guess, that his intimacy with the bin Laden family in particular and with high-ranking members of al-Qaeda may have made him a very information-rich intelligence target that some other children might not be. That, to me, seems plausible, but I don't know.

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

That intimacy, in my view, would be playing with the other bin Laden children, but that's my own personal view.

[Howard Anglin]

His father was a close intimate, from what I understand--

[Wayne Marston, NDP, Hamilton East—Stoney Creek, ON]

Oh, his father was a different story.

[Howard Anglin]

He was a dutiful son following his father, I'm sure. Around the campfire, many stories were shared that could be useful to Canadian and U.S. intelligence.

[The Chair, Conservative, Scott Reid]

All right. That concludes this round of questioning.

Thank you very much, Mr. Anglin, for coming here. Thank you for putting up with the vagaries of the way this committee operates.

I'm going to ask our next witness to come up immediately so we can keep going.

I'll remind everybody that we do have refreshments available, but you have to get them on the fly or else wait until the end of the meeting, because we're not planning to stop at any point.

We were meant to complete this part 10 minutes early. That didn't work. We are at exactly 1 p.m., so when Mr. Raghubeer is finished with his comments, we'll see how much time is left. I suspect it will make the most sense for us to have one round of questions, and we'll adjust the length as necessary to allow for us to go in camera at the end of the meeting. I'll seek consensus on what seems like a reasonable length of time for that one round when we get to that point.

With that out of the way, Mr. Raghubeer, if you are ready to start, please proceed.

[Naresh Raghubeer, Executive Director, Canadian Coalition for Democracies]

Good afternoon. On behalf of the Canadian Coalition for Democracies, I'd like to thank the Subcommittee on International Human Rights of the Standing Committee on Foreign Affairs and International Development for inviting me to testify.

Founded in 2003, the Canadian Coalition for Democracy--CCD for short--is a national, non-partisan, multi-ethnic, multi-religious organization of concerned Canadians dedicated to promoting democracy at home and abroad and to defending civil liberties and national security. CCD focuses on research, education, and media outreach to build a greater understanding of the importance of national security and a pro-democracy foreign policy.

CCD is concerned about Mr. Omar Khadr and the challenges his case poses for Canada as a nation that respects human rights, international law, and due process. Before presenting our concerns, CCD wishes to make clear that, first, we support Mr. Khadr's right to Canadian consular access, and second, we believe the Canadian government has an obligation to make direct representation to the U.S. government, a close ally and major trading partner, to ensure that Mr. Khadr enjoys the full benefit of a constitutional U.S. regime of law and procedure.

I will touch on three areas arising from the Khadr case during my presentation: the jurisdictional struggle over Mr. Khadr, the Khadr family, and the issue of Canadian citizenship jurisdiction.

CCD is concerned about the potential precedence arising from jurisdictional questions concerning charges that Mr. Khadr “conspired with members of Al Qaeda to commit acts of murder and terrorism against U.S. and coalition forces”.

Generally available facts and testimony heard by this committee attest to the extent of an unfolding jurisdictional struggle over Mr. Khadr. Which nation has the right and responsibility to bring him to trial? Three national jurisdictions come to mind: Afghanistan, the United States of America, and Canada.

Mr. Khadr, a Canadian citizen, is alleged to have committed serious crimes in Afghanistan. All else held equal, Afghanistan might therefore have claimed jurisdiction for the homicide and wounding cases. The United States of America was another possible jurisdiction, counting two of its citizens, one injured and one dead, and both U.S. armed service members, victims in the fray: Sergeant Layne Morris and medic Sergeant 1st Class Christopher James Speer.

The third state with any particular jurisdiction over Mr. Khadr is Canada, where he happens to be a citizen. Mr. Khadr was not charged in Afghanistan for the crimes allegedly committed there. Rather, it was the United States that asserted jurisdiction to charge and bring Mr. Khadr to trial before a U.S. court. In its recent decision, the Supreme Court of Canada recognized constitutional and other shortcomings highlighted by the U.S. Supreme Court and the latter's criticism of military tribunal arrangements respecting Mr. Khadr. However, there is some indication that this tribunal regime has since been revised to take account of U.S. international legal issues. In any case, the Supreme Court of Canada was perhaps more realistic when, in last week's Canada v. Khadr decision, the full bench conceded that, “The ultimate process against Mr. Khadr may be beyond Canada's jurisdiction and control”.

Considering the Supreme Court of Canada's decision, CCD believes that Parliament must allow process to take place, as long as Mr. Khadr is granted the full measure of the benefit of U.S. constitutional legal protection.

With regard to the Khadr family, CCD is concerned about the possible legal and other responsibilities of certain members of Mr. Khadr's immediate family, for one or more of these members have reportedly jeopardized Mr. Khadr's and others' safety by radicalizing and inciting him to idealize shahid status--martyr status. They then delivered him as a child into the control of the most virulent of the world's jihadists or holy warriors. CCD believes it is incumbent on Parliament and the Minister of Justice to review the role played by members of the Khadr family in exposing Omar Khadr, a child, while still in Afghanistan, to what might be considered hate, jihadist incitement, and weapons used for no other purpose than killing. Indeed, to what extent did this priming for hatred occur in homes and institutions of our own country?

According to testimony before this subcommittee, Mr. Khadr's defence counsel, Lieutenant-Commander William Kuebler, expressed his “condemnation of Maha and Zaynab Khadr” and noted that “it would be appropriate for the U.S. government not to want to repatriate him in such a way that he will fall in line with them and other influences in his immediate family”. Such statements call on us to ask why this subcommittee on human rights, the Minister of Justice, and even the Ontario Ministry of Children and Youth Services are not investigating the Khadr family's possible role in leading Omar Khadr down the path to martyrdom.

Canadians need to know if there was negligence or something worse on the part of Maha Khadr and need to show others that the family law presumption of “the best interests of the child” does not contemplate hatred and killing. Moreover, Canadians deserve to fully understand the role played by the Khadr family in promoting jihad and martyrdom to children who are Canadian citizens. Were members of the Khadr family party to Omar Khadr's alleged offences? Again, this should be investigated.

If indeed Mr. Omar Khadr was coaxed or manipulated into becoming a jihadist, those responsible should be brought to justice in Canada as soon as possible. Failure to enforce our laws would establish a dangerous precedent and embolden extremist parents to use Canada as a hate haven in which to groom Canadian children for jihadi Islamist activity against unsuspecting Canadian neighbours and foreigners.

Next, allow me to touch briefly on the subject of Canadian citizenship. CCD is also concerned about Parliament's relative inattention to the need for clear thinking and serious study about the rights and duties of citizens and government in matters of Canadian citizenship. CCD urges members of this subcommittee and Parliament as a whole to undertake a comprehensive public review of the rights and responsibilities of Canadian citizenship, and of dual citizenship, in this new era of global travel, tourism, tribal regional conflicts, and wars carried out by non-state actors like Hezbollah, Hamas, and al-Qaeda.

As part of this study, CCD urges Parliament to seriously consider Canada's obligation or support for dual-citizenship and other Canadians who serve without Canadian authorization in foreign militias and armed forces such as the Israel Defense Forces, the Islamic Courts Union in Somalia, the Taliban, or the U.S. armed services. Is service in foreign armies--or in foreign governments, for that matter--really compatible with the kind of assurance of loyalty that Canada and Canadians deserve? Parliament must consider whether it wishes to continue permitting any and all Canadians, regardless of country of origin, to maintain dual nationality.

We have seen in the case of Syria and Mr. Maher Arar how certain countries refuse to respect Canadian citizenship. By studying and reviewing the issue of citizenship and the government's proper role in attendant matters, Parliament can begin an important dialogue. Parliamentarians can clarify what it truly means to be a Canadian, what limits and expectations apply to citizens at home and abroad, and the nature of any boundaries beyond which Canada's capacity to assist nationals abroad might be circumscribed. This is a fundamental matter of sovereignty, and as elements of the Khadr case suggest, this conversation has been a long time coming.

Thank you.

[The Chair, Conservative, Scott Reid]

Thank you, Mr. Raghubeer.

You've completed your comments at 10 minutes past. I suggest we have one round of seven-minute questions and answers.

Mr. Cotler, if you would start.

[Irwin Cotler, Liberal, Mount Royal, QC]

Thank you, Mr. Chairman, and I want to thank the witness for being with us today.

My question is based on a comment you made, if I heard it correctly, that the legal process with respect to Omar Khadr should be allowed to take place provided he is being given the full protections under U.S. constitutional law.

Do you believe he has been provided with such appropriate constitutional protections, given the illegal and prolonged detention, the lack of counsel during the first several years of his detection, the coerced interrogation and the like? Indeed, even the U.S. Supreme Court found this process to be illegal.

Do you believe that Omar Khadr has in fact received appropriate constitutional protections with respect to prosecution?

[Naresh Raghubeer]

At this time we believe the system under which he is being brought to trial is appropriate. There were certainly violations of international law, and the U.S. Supreme Court recognized that. The Canadian Supreme Court also recognized the U.S. decision. We acknowledge those difficulties. But there's a process in place, and as the Canadian Supreme Court noted, we may not have any jurisdiction there. At this time we agree that the process should continue.

[Irwin Cotler, Liberal, Mount Royal, QC]

I'm asking whether you believe he has received appropriate protection under U.S. constitutional law, leaving aside for the moment such violations of international treaty law as may have been found by the U.S. Supreme Court, and which in fact underpinned the recent decision by the Canadian Supreme Court. I'm talking about positions you have taken. Do you maintain that Omar Khadr has received appropriate protections under U.S. constitutional law?

[Naresh Raghubeer]

Sir, I'm not a U.S. constitutional expert, nor am I a lawyer. However, I and our Canadian Coalition for Democracies believe that Mr. Khadr has been treated relatively well compared to how other states treat their citizens. Mr. Khadr has been granted very able counsel, and he has been able to communicate with his family. He's healthy, from what we are made to understand, and we are confident that he is being treated appropriately.

As for the U.S. constitutional law, the U.S. Supreme Court, as you know, is reviewing this matter and it will make that decision. But at this point, we do believe he has been treated appropriately.

[Irwin Cotler, Liberal, Mount Royal, QC]

And do you believe that his detention, treatment, and prosecution have been conducted in accordance with international humanitarian law, including the optional protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict?

[Naresh Raghubeer]

We do believe, sir, that he has been treated appropriately.

[Irwin Cotler, Liberal, Mount Royal, QC]

That will conclude my questions.

[The Chair, Conservative, Scott Reid]

All right. We will open it up to your colleague, Mr. Silva.