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June 29, 2009

A New Era of Justice? Not in Canada

Sumaira Shaikh

Sumaira ShaikhWhile U.S. President Barack Obama has advanced a positive move towards an indiscriminate re-entrenchment of the rule of law, the Canadian government has chosen to adopt a different mode of action: to discriminate and protect only those they choose.

Canada did not learn from the Maher Arar episode. If the Canadian government wants to mitigate its damages, it must do its duty to protect Omar Khadr as soon as possible; otherwise, it will bring about another lawsuit for disregarding the protection of its citizens.

Khadr remains the only Western prisoner in Guantánamo Bay. Even after Federal Court Justice James O’Reilly on April 23 ordered the Harper government to repatriate Khadr, the government remains aloof: a clear signal that when it comes to foreign policy, it prefers to reject the fundamental principles of justice demanded by one of the highest courts in the country. No one is asking Prime Minister Stephen Harper to set Khadr free; just allow him to exercise his rights as a Canadian citizen.

The court held: “We know that Canada raised concerns about Mr. Khadr’s treatment, but it also implicitly condoned the imposition of sleep deprivation techniques on him, having carried out interviews knowing that he had been subjected to them.”

If Canada were to bring Khadr back it would not be a novel occurrence—European countries have taken responsibility for their citizens and requested their repatriation—yet the issue seems far more problematic than it ought to be. The problem lies in the nature of the “serious crime” that Harper keeps repeating in his public statements. 

Everyone is quite aware that terrorism is a grave concern and is a serious crime warranting punishment. However, what is puzzling is not the acknowledgment of its gravity, but its distinguishment from other, equally heinous, crimes. Somehow, when it comes to terrorism civil liberties are halted and torture becomes acceptable; yet, when a serial murder takes place, we have all the mechanisms in place to deal with it. How is a terrorist that kills innocent people different from a local murderer that kills innocent people? Can a terrorist not be dealt with in the same manner as Paul Bernardo?

The problem is that the government fears it would not have enough to pin down Khadr in Canada, but as Justice O’Reilly wrote: “If there is doubt about whether those [threshold] criteria [for a Canadian prosecution] can be met, there should also be doubt about whether Mr. Khadr’s ongoing detention at Guantánamo Bay is consistent with principles of fundamental justice.” This concern has somehow slipped the minds of many. The Canadian government would rather have Khadr wrongfully detained in another country than rightfully prosecuted in Canada. The criminal justice system in Canada upholds the presumption of innocence until proven guilty, and this presumption should apply to all criminals equally. 

The government’s concerns are illegitimate, and were found to be so by Justice O’Reilly. They were not found to be “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” as required by section 1 of the Charter of Rights and Freedoms. The government’s concerns can be adequately addressed through procedures already in place. The criminal justice system is constructed to deal with fact-finding and determining whether the threshold for a prosecution has been met. If either of these thresholds is not satisfied, a criminal trial is not warranted against an alleged terrorist, an alleged murderer or an alleged rapist. There is no reason to make a special case for Omar Khadr.

Canada is suffering from post-Bush nostalgia syndrome. It’s caught in the whirlwind of the Bush Doctrine more than the United States is. While the security certificate procedures in Canada may be justifiable to some—given that those in detention centres are not Canadian citizens, and that CSIS has reasonable grounds to believe they may commit terrorist acts—this same regime is not applicable to Khadr. He is not in holding for “inadmissibility” reasons; he is a citizen.  He is entitled to fair answer and defence, and to the rights guaranteed him under the Constitution. If such mistreatment of citizens is justified at the hands of another country with your own country’s complicity, then who is to stop this from happening to any of us? I do not like the idea of my section 7 rights being thwarted for “policy” reasons.

The fact that Khadr is a Canadian citizen means he is entitled to his section 7 rights—life, liberty and security of the person—and the Canadian government is required to uphold the principles of fundamental justice. As Justice O’Reilly wrote:  “[The government has a] duty to protect Mr. Khadr from being subject to any torture or other cruel, inhuman or degrading treatment or punishment.” The fact that he was a child at the age of 15 when taken into U.S. custody also should not be disregarded, he noted.

Canada’s reckless disregard for the Charter of Rights and Freedoms demonstrates only one thing: a Canadian passport is only good for travel purposes. If any Canadian expects protection from this government, it is time to wake up from such disillusionment. 

* Sumaira Shaikh has a University of Toronto, BA (Hons.) in  Journalism and Political Science. She  is a law student, Class of 2010, at the University of New Brunswick.

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