FAAE Committee Report

DISSENTING OPINION

Our government believes that the opposition is approaching the case of Mr. Omar Khadr in a way that downplays Mr. Khadr’s alleged crimes and ties to terrorism while framing the government’s failure to repatriate him as a violation of Canadian laws.  The government has serious concerns, which are left unaddressed by this committee, especially with regards to the one-dimensional approach to the study and the limited scope of testimonies that upheld an interpretation of Mr. Khadr as a victim.  The official opposition has taken up Mr. Khadr’s banner.  Indeed, on this issue, it is difficult to differentiate between the policy of the current government with that of the previous Liberal government. In absence of any explanation from Liberal members of the Committee, the official opposition’s recent interest in Mr. Khadr’s case, it seems, can be attributed to nothing more than a recent sway in public opinion and the potential for political gain.    

 We are of the belief that the allegations against Mr. Khadr are serious and should be treated as such.  This is not a simple question that ends with whether or not we should repatriate Mr. Khadr, as the Report indicates.  Instead, this is a question that has far-reaching implications for our country’s stance on terrorism.  It should not be forgotten that Canada has indeed been affected by terrorism.  Twenty-four Canadians were killed in the attacks of September 11, 2001 when terrorists flew passenger jet airliners into the World Trade Center. 280 Canadians perished when terrorist bomb exploded onboard a Boeing 747 Air India flight.  In addition, Canadian troops have been engaged in Afghanistan – the country where al Qaeda was allowed to metastasize and where Mr. Khadr was captured – since 2001. Mr. Khadr could become a litmus test on Canada’s commitment to impeding global terrorism and the results of our actions today could result in consequences that are not in the long-term interest of the country.

Canada’s Moral Obligation?

The Subcommittee heard from several witnesses; none of whose testimonies were so disregarded and underplayed in the draft report as that of Mr. Howard Anglin, a government witness. Mr. Anglin is a respected lawyer in the United States that provided the Subcommittee with expert testimony on the American Constitution, International law, and Canada’s obligations to Mr. Omar Khadr.   Mr. Anglin sought to address previous witness testimony that portrayed the detention of Mr. Khadr as illegal and contrary to international standards of justice and law.  Mr. Anglin’s testimony concluded that Canada’s obligations to Omar Khadr are moral obligations at best and leaving his fate in the hands of the United States should not linger negatively in the moral conscience of the nation. 

            Most of the witnesses agreed that there is nothing in the optional protocol on the involvement of children in armed conflict, customary international law, Canadian law, or U.S. federal law that bars the prosecution of a minor for war crimes. 

            Mr. Anglin argued that traditional courtrooms are inadequate in prosecuting unlawful combatants detain on the battlefield. 

Indeed, it's a virtual necessity given the circumstances under which battlefield arrests take place. Many witnesses are dead, there's no forensic detective squad to document the scene, and most of the surviving witnesses are serving overseas at the time of trial. For all these reasons, military commissions throughout history have not applied the same evidentiary standards we demand of a civilian criminal trial. If they were required to do so, it would be virtually impossible to ever try detainees.

            Trying Mr. Khadr in Canada would pose very serious issues as a result of the unusual nature of his capture on a battlefield in a foreign nation. Indeed, this would be without precedent.

Exercising Peace Bonds

The official opposition has recommended that section 810.01 of the Criminal Code be exercised in the event that Mr. Omar Khadr is repatriated to Canada.  This section states:

A person who fears on reasonable grounds that another person will commit an offence under section 423.1, a criminal organization offence or a terrorism offence may, with the consent of the Attorney General, lay an information before a provincial court judge.

The government believes that such measures in the situation of Omar Khadr are counter productive.  If returned to Canada, the government believes Mr. Khadr would have no other recourse than to reestablish his ties with his family, a group of suspected terrorist-sympathizers espousing an extremist ideology.  In addition, placing a peace bond on Mr. Khadr is indicative that he poses a risk to society despite the fact that it is unlikely he will ever face conviction in Canada.

At this point, the application of a peace bond would be speculative at best.  Omar Khadr’s trial has yet to conclude and, as such, we are unaware of the risk he poses as an alleged terrorist.   Many witnesses agreed that it was debatable whether Mr. Khadr would face trial if he were repatriated back to Canada. Testimony that concluded that Mr. Khadr could be tried and convicted came from a group of well-intentioned, yet inexperienced, law students. 

Individual Liberties versus International Obligations to Security

The government anticipated that the final report and recommendations of the Subcommittee would reflect both the legal considerations associated with the Khadr case as well as Canada’s obligations to the international community.  Canada is a proponent of the United Nations Global Counter-Terrorism Strategy, a signatory on multiple anti-terrorism conventions, and a supporter of countless U.N. General Assembly resolutions condemning terrorism.  As such, it is important that a balance be struck between individual rights and national security considerations – not to mention obligations to the international struggle against terrorism. 

Repatriation

Canada signed the Transfer of Offenders Treaties in 1978.  Since then, 1351 Canadians tried and convicted in foreign countries have been repatriated back to Canada.  These figures illustrate the repatriation of individuals only after they were tried and convicted of an offense.  Repatriation does not occur before a judgement is made on the charges before the courts.