I'm in the paper this weekend arguing that, for a variety of reasons, our political leaders just can't ignore the case of Omar Khadr, even if they think he ought rot in prison.
Khadr is a Canadian, born in the same city as Prime Minister Stephen Harper (Toronto) and that means, that, at some point, he's going to come home.
Here are some grafs from the decision, released July 5, 2010, by the Honourable Mr. Justice Zinn of the (Canadian) Federal Court, who gave the government seven days to come up with a “remedy” for the violation of Khadr's constitutional rights, a violation the Supreme Court of Canada had ruled has occurred. The government, last Monday on day 7, appealed Zinn's decision to the Federal Court of Appeal. Here are some of the paragraphs from Zinn's decision [PDF]– i call your attention to paragraph number 23:
[3] Omar Khadr was born in Toronto in 1986. He is a Canadian citizen. He has spent most of his life away from Canada in Pakistan, Afghanistan, and most recently in Guantanamo Bay, Cuba.
[4] In July 2002 there was a gun battle at Khost, Afghanistan, between troops from the U.S. and persons alleged by the U.S. to be terrorists. During that battle, a U.S. soldier was killed by a grenade which the U.S. alleges was thrown by Mr. Khadr, who was then 15 years old.
[5] Mr. Khadr was seriously injured in this battle. He was taken into U.S. custody and treated by U.S. troops. He spent some time at Bagram Airbase in Afghanistan before being transferred to Guantanamo Bay on October 28, 2002. He remains there.
[7] In February and September 2003, agents from the Canadian Security Intelligence Service (CSIS) and the Foreign Intelligence Division of Foreign Affairs and International Trade (DFAIT) travelled to Guantanamo Bay and questioned Mr. Khadr. The information obtained by these Canadian officials was provided to the U.S. Mr. Khadr was interviewed again in March 2004 by a DFAIT official who knew, prior to the interview, that Mr. Khadr had been subjected by U.S. authorities to a program of sleep deprivation. A report described this technique and its purpose:
In an effort to make him more amenable and willing to talk, [blank] has placed Umar on the “frequent flyer program.” [F]or the three weeks before [the] visit, Umar as not been permitted more than three hours in any one location. At three hour intervals he is moved to another cell block, thus denying him uninterrupted sleep and a continuous change of neighbours. He will soon be placed in isolation for up to three weeks and then will be interviewed again.
[8] The actions of these Canadian officials were soundly criticized by the Supreme Court of Canada which found that their conduct violated the principles of fundamental justice.
This conduct establishes Canadian participation in state conduct that violates the principles of fundamental justice. Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.
[15] On April 23, 2009, Justice O’Reilly allowed the application for judicial review of the “ongoing decision and policy” of the Government of Canada not to seek the repatriation of Mr. Khadr to Canada: Khadr v. Canada (Prime Minister), 2009 FC 405. He found that Canada had infringed Mr. Khadr’s rights under section 7 of the Charter, which provides that:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[16] Justice O’Reilly ordered Canada to remedy this breach of the Charter by requesting the U.S. to “return Mr. Khadr to Canada as soon as practicable.”
[23] In my view, … It would be an effective remedy only if the U.S. agreed to the request and did return Mr. Khadr to Canada. If he was released, then he would be removed from U.S. detention, and it was his detention that the Court found to be the consequence of Canada’s breach of his Charter rights, and it was his detention that the Charter obliges Canada to cure.
From paragraph #23: ”… it was his [Khadr's] detention that the Court found to be the consequence of Canada’s breach of his Charter rights, and it was his detention that the Charter obliges Canada to cure.”
But some Supreme Court Justices appear to not be as clear-cut as Judge Zinn.
http://www.law.ualberta.ca/centres/ccs/rulings/supremecourtrulesonapplicationofthecharteroverseas.php “… Justice LeBel, writing for the five judge majority, held that the Charter did not apply to the searches and seizures conducted under the laws of a foreign government; however, the majority judgement also stated that evidence obtained by Canadian state officials acting overseas would be excluded if its admission would render the trial process unfair.
Justice Bastarache, writing for himself and two others, found that although the Charter did apply to the searches and seizures, s. 8 was not violated. The three judges stated that, “the Charter is flexible enough to permit a reasonable margin of appreciation for different procedures” and held that the actions of the RCMP officers were reasonable given the context. [ii] The remaining judge (Justice Binnie) said the Charter did not apply on the facts, but refused to consider the issue of whether or when the Charter will apply extra-territorially, stating that, “[t]he Court should decline to resolve such important questions before they are ripe for decision”. [iii] …”
True, Khadr's case is not one involving “search & seizure.” Nevertheless, 6 Supremes thought the Charter did NOT apply in cases conducted under the laws of a foreign government, of which Khadr’s is one although not one involving the same crime.
http://www.lawtimesnews.com/200706182264/Headline-News/Charters-protections-limited-abroad
And “Deference to the foreign law ends where clear violations of international law and fundamental human rights begin.” …
“In most cases, there will be no exception and the charter will not apply,” he [Justice LeBel] wrote. “The inquiry would then move to the second stage, at which the court must determine whether the evidence obtained through the foreign investigation ought to be excluded at trial because its admission would render the trial unfair.”
The Canadian Government did just that. It asked the US to exclude evidence gathered illegally. http://www.law.ualberta.ca/centres/ccs/news/?id=355
“In January 2010, the Supreme Court of Canada unanimously ruled that it was up to the government to choose how to remedy the breach of Khadr’s rights. This part of the ruling reversed the decisions of the Federal Court and the Federal Court of Appeal, which had ordered the government to ask the United States government for Khadr’s repatriation to Canada. …
The government responded to the Supreme Court ruling by sending a diplomatic note to American authorities asking that evidence gathered by Canadian officials be excluded from his trial. …
He [Judge Zinn] did, however, leave open the possibility for the government to come up with other ways of remedying the breach. …”
In other words, Judge Zinn, like the Supreme Court Justices, did not categorically rule that Omar Khadr MUST be patriated. So let the US try him, and let's take it from there.