The Harper government should immediately bring Omar Khadr back to Canada.
The nation’s government actively participated in a process contrary to its international human rights obligations and contributed to Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by Section 7 of the Charter of Rights and Freedoms.
Those are the words of the Supreme Court of Canada, which issued its decision on the Khadr case today.
Khadr was captured by US troops in Afghanistan in 2002. He was 15 years old.
He is alleged to have tossed a grenade at an American soldier. His case has yet to be heard.
Three months after capture, Khadr was taken to the US military base at Guantanamo Bay and placed in adult detention facilities.
After more than two years, in September 2004, he was deemed an enemy combatant and charged with war crimes. A trial still has not been held.
In 2003, Foreign Affairs and Canadian Security Intelligence Service agents questioned Khadr and shared the product of these interviews with US authorities.
In March 2004, a Foreign Affairs official interviewed Khadr with the knowledge he had been subjected to a sleep-deprivation technique known as the “frequent flyer program” in an effort to make him less resistant to interrogation. Khadr refused to answer questions.
In 2008, the Supreme Court ordered Ottawa to give Khadr transcripts of the interviews he gave to CSIS and Foreign Affairs officials.
Khadr has repeatedly asked Ottawa to bring him back to Canada. In July 2008, Prime Minister Stephen Harper told Khadr he was out of luck.
“The answer is no,” said Harper, adding Ottawa would seek assurances of good treatment of Khadr from Washington.
In August 2008, a federal court reviewed his case, ordering Ottawa to repatriate Khadr as soon as possible.
Ottawa appealed, and the case wound up before the Supreme Court.
That court ruled on two issues.
whether his Section 7 Charter rights were violated, and whether Ottawa should repatriate him.
On the first matter, the court explained Canadians are bound by the laws of the country in which they find themselves and cannot tap their rights under the Charter when in a foreign country.
But, the Khadr case is an exception because the US Supreme Court ruled the military commission in place at the time was a violation of fundamental human rights protected by international law, it said.
Therefore, the principles of fundamental justice required Canadian officials interrogating Khadr to release the statements he gave them.
The statements were obtained after Khadr was tortured, and could be used against him in the US case. Therefore, the conduct of the Canadian government deprived Khadr of liberty and security of person.
And, Canadian conduct in connection with Khadr’s case did not conform to the principles of fundamental justice, it ruled.
That is, the statements were obtained through participation in a regime that was known to have refused detainees the right to challenge the legality of their detention in court.
As well, Khadr was 16 at the time and had no access to a lawyer or adult with his best interests in mind.
“Canada’s participation in the illegal process in place at Guantanamo Bay clearly violated Canada’s binding international rights obligations.”
Canada violated the principles of fundamental justice. That is, Canada violated Khadr’s rights under the charter.
“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 US prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects,” wrote the court in its decision.
However, the court does not have the authority to order Ottawa to repatriate Khadr, it ruled.
It awarded Khadr court costs.
And it placed that decision of what to do with Khadr in the hands of the Harper government. It must decide how best to respond to the judgement in light of the current information, wrote the court.
The right thing to do, given the decision, is to bring Khadr back to Canada.
It should do so immediately.(Richard Mostyn)