‘Complicit in the abuse of a Canadian citizen’s rights’

by Aaron Wherry

The Globe and Mail editorial board laments the government’s decision to appeal the Federal Court ruling that Omar Khadr be repatriated.

Justice Minister Rob Nicholson is taking the Canadian government out onto a weak limb, in its appeal of a court order on the issue of Omar Khadr’s repatriation from the United States. It is weak legally and even weaker morally. There is no serious principle worth defending.

Here is the victory Ottawa seeks: that the Canadian government can be complicit in the abuse of a Canadian citizen’s rights abroad – up to and including torture – without a court ordering that it do its best to bring that citizen home.

Whether the case is winnable is beside the point. Is it really a victory worth fighting for?

Mind you, the Canadian government’s official position is—or at least was, at last check—that the United States did not participate in torture.




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‘Complicit in the abuse of a Canadian citizen’s rights’

  1. So, if it is Canada's position that the U.S. is not a torture state, and as of right now, Khadr is not facing the death penalty and is still awaiting trail, what grounds for return is there?

    Is Canada going to be held responsible for every citizen that breaks a law in a foreign country? Or are we going to declare the U.S. a torture state?

    Is the court going decide what our foreign policy is going to be?

    • Read the court decisions and you will find your answers. Not trying to be glib. If you're interested in the actual answers, read the decisions.

    • I believe the Judgement is here.

      " I am satisfied, in the special circumstances of this case, that Mr. Khadr's rights under s. 7 of the Charter have been infringed. I will grant his request for an order requiring the respondents to seek his repatriation from the United States. Given my conclusion regarding s. 7, it is unnecessary for me to deal with the other grounds Mr. Khadr raised before me. The issue of disclosure has already been conclusively decided by the Supreme Court of Canada and, therefore, cannot be re-litigated before me."

    • Should foreign policy trump the rights of a Canadian citizen? I don't think so, what about you?
      But aside from that, no, the court is not going to decide what our foreign policy is going to be. But, in the case where it is found that our government's foreign policy violates the Charter Rights of a Canadian citizen, isn't the court obligated to direct the government to change its policy? And if it isn't, can you explain what it is, then, that the Charter of Rights and Freedoms is good and/or intended for?

      • Conservatives apparently don't care about such trivial formalities. I've stated before they're closet authoritarians… and you now have one of them arguing in the NP's Full Comment today basically folks should be declared guilty until presumed innocent in terrorism cases, and disregard those rather inconvenient rights.

  2. I'm not sure the requested remedy is as strong as the Globe makes it out to be. I don't think a simple request for repatriation is a requirement to use their best efforts.

  3. Some more background on Mr K's legal status.

    It's the "unlawful enemy combatant" bit that gets me. If he is a soldier he cannot commit murder on the field of battle against an enemy. If he is not a soldier and only a "terrorist" he should be tried on that crime and given the same legal rights as anyone else.

    "A society is judged by how it treats the least among them.”

  4. My first thought was that this is the Conservatives, yet again, being unwilling to admit that they made a mistake.

  5. Also from the decision:

    I. Factual Background

    (a) Events Leading to Mr. Khadr's Arrest and Detention

    [5] Mr. Khadr was born in Canada in 1986. He moved with his family to Pakistan in 1990. In 1995, his father, Mr. Ahmad Khadr (Ahmad), was arrested for alleged involvement in a bombing of the Egyptian embassy in Islamabad. The rest of the family returned to Canada. They moved back to Pakistan in 1996 after Ahmad was released. They came back to Canada again in 2001 for a number of months while Ahmad recuperated from an injury caused by a landmine. The family moved to Afghanistan in July 2001. After the events of September 11, 2001, Mr. Khadr and his brothers attended training camps associated with Al-Qaeda.

    [6] The events surrounding Mr. Khadr's arrest in July 2002 are disputed. Clearly, he was present at a gun-battle near Khost, Afghanistan, during which a United States soldier was killed by a grenade. Mr. Khadr is alleged to have thrown that grenade. He maintains that he did not.

    From the facts above, it seems the Khadr family's interest in Canada is primarily as a refuge when their al-Qaeda activities become perilous, and for health care treatment after being injured in such activity. I understand the 'least among' argument, but it becomes fuzzy ground if our institutions are being used in an effort to harbour terrorist activities.

  6. Also from the decision:

    I. Factual Background

    (a) Events Leading to Mr. Khadr's Arrest and Detention

    [5] Mr. Khadr was born in Canada in 1986. He moved with his family to Pakistan in 1990. In 1995, his father, Mr. Ahmad Khadr (Ahmad), was arrested for alleged involvement in a bombing of the Egyptian embassy in Islamabad. The rest of the family returned to Canada. They moved back to Pakistan in 1996 after Ahmad was released. They came back to Canada again in 2001 for a number of months while Ahmad recuperated from an injury caused by a landmine. The family moved to Afghanistan in July 2001. After the events of September 11, 2001, Mr. Khadr and his brothers attended training camps associated with Al-Qaeda.

    [6] The events surrounding Mr. Khadr's arrest in July 2002 are disputed. Clearly, he was present at a gun-battle near Khost, Afghanistan, during which a United States soldier was killed by a grenade. Mr. Khadr is alleged to have thrown that grenade. He maintains that he did not.

    [7] Mr. Khadr was himself seriously injured during the gun-battle by both bullets and shrapnel.

    From the facts above, it seems the Khadr family's interest in Canada is primarily as a refuge when their al-Qaeda activities become perilous, and for health care treatment after being injured in such activity. I understand the 'least among' argument, but it becomes fuzzy ground if our institutions are being used in an effort to harbour terrorist activities.

  7. Due process must prevail. If they have abused their citizenship and committed crimes then let them be properly charged and processed with all the rights afforded by the Charter and The Canadian legal system.
    If the system is imperfect and needs improvement that is a separate issue.

  8. To me the question is "Since when have all levels of the Court system in Canada usurped our nation's foreign policy?"

    And that question DEFINITELY must be answered by the SCOC> My fear, though, is that the SCOC will pronounce that OF COURSE these unelected judges will take over foreign policy when they disagree with the rubes who were elected for that specific purpose.

    • See, and my hope is that the Supreme Court will recognize that the Government of Canada can't just ignore the rights of it's citizens because they happen to have stepped beyond our territorial borders, and that agents of the state can't just do whatever they like to citizens of Canada just because they're not physically in Canada, and then hide behind "this is a matter of foreign affairs, and therefore as soon as a citizen is off Canadian soil we can treat (or mistreat) them anyway we like and no one, and no Charter of Rights, can stop us (bwahhahah)".

      (Sorry, whenever I think of the government's argument here I always feel a need to add a maniacal laugh at the end).

      • And you are certainly entitled to that opinion. So far a whole bunch of lesser courts are in agreement, more or less, with you, up to and including, it seems, the imaginary bwahahaha.

        But, here's the thing. OF COURSE the federal government must balance the degree to which it will sacrifice principles and/or risk the wrath of allies and enemies when it figures out how much or how little to stick up for a citizen abroad. Ignore it? Write a note? Condemn it from Ottawa? Condemn it from the closest embassy? Expel their ambassador? Bring ours home? Call them names at the UN? Bribe their government for a release? Declare war and send over an elite strike force? Don't declare war but send over the elite strike force anyway? Let NATO know that "we have been attacked because our citizen is in trouble in country X" and invoke the need for a multinational military response? Show me where the Constitution (go ahead, pick 1867 or 1982) confers that responsibility to choose on the judges.

        And if you as a citizen don't like that Mommy Maple Leaf won't come and kiss it all better anywhere in the world, well, don't leave home. For additional help, in particular don't leave home and pick a fight with the US military.

        (Update Sept 2 at 8:45-ish EDT: incorrect "will" corrected to "won't" in last sentence)

        • In this case, of course, a slight hint would, by now, suffice to reclaim him. There is the constitutional issue of whether the Government is legally obliged to reclaim him, and then there is the important political issue of whether they are morally obliged to reclaim him. Hiding behind the former so as to avoid responding to the latter is rather appalling. If they want to toss Khadr to the lions, let them at least have the courage to say they are doing so.

          • That slight hint may or may not reclaim him, as the US military appears quite eager to have him tried in connection with the death of one of their servicemen.

            If you mean "reclaim" as "accept him when turfed by the USA," you have very much confused what the court cases have been about. If, rather, and as I suspect, you mean "reclaim" as "actively try through diplomatic channels to bring this gentleman home [to a country of convenient citizenship that his life story tells us he would scarcely recognize]," then you have very much confused the purpose of the court cases by swirling in "constitutional legal" and "political moral" issues. The SCOC judges the former; the electorate judges the latter. As it should be. And yet, look what's been going on up to now.

            If you don't think that the Harper government has made it pretty clear that they feel this particular Canadian citizen deserves to be thrown to the lions [or some reasonable military-tribunal facsimile thereof], you have clearly not been paying attention.

  9. That slight hint may or may not reclaim him, as the US military appears quite eager to have him tried in connection with the death of one of their servicemen.

    If you mean "reclaim" as "accept him when turfed by the USA," you have very much confused what the court cases have been about. If, rather, and as I suspect, you mean "reclaim" as "actively try through diplomatic channels to bring this gentleman home [to a country of convenient citizenship that his life story tells us he would scarcely recognize]," then you have very much confused the purpose of the court cases by swirling in "constitutional legal" and "political moral" issues. The SCOC judges the former; the electorate judges the latter. As it should be. And yet, look what's been going on up to now.

    If you don't think that the Harper government has made it pretty clear that they feel this particular Canadian citizen deserves to be thrown to the lions [or some reasonable military-tribunal facsimile thereof], you have clearly not been paying attention.

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