A mess of legalities - Macleans.ca

A mess of legalities


Slate’s Dahlia Lithwick reviews Omar Khadr’s legal situation here and in the United States. And, as she notes, all three hours and 42 minutes of Friday’s fascinating Supreme Court hearings can now be seen here.

Lithwick notes the intervention of Simon V. Potter, an impressive performance I forgot to mention on Friday. Mr. Potter, a Scot apparently, chose to deliver his remarks in fluent French, answered questions in English, and managed to do both with the commanding presence of a Shakespearean stage actor.


A mess of legalities

  1. Has anyone seen/read article about how rules of evidence will be handled if we bring Khadr back here for trial?

    I am guessing American soldiers were not too concerned with Canada's rules of evidence when they apprehended Omar. So either Khadr is not actually going to be tried in Canada if we bring him back or else trial will ignore rules of evidence and make it's own rules up as it goes along.

    • Evidence will probably be handled same way as it has always been.

    • This is the dirty secret, what exactly would Omar be charged with by Canadians? This is the lie inherent in the cry of "let him face justice in Canada"

      His alleged transgressions were in Afghanistan against Americans, and he has been found guilty by a US civil court by the way. It isnt clear to me what charges he would face here. If the Americans dont want to prosecute him, fine, but if they do then fine. If he is finally found guilty and has time left on his sentence then he can serve it in Canada.

      It is a convenient PR fiction that his supporters engage in by saying he can be tried here. Do you honestly believe Judy W-L from the NDP would be so willing to bring him home if she thought there was actually a charge for him to face in this country?

      As for the great scot…..yes impressive display of passion. Fortunately courts decide based on reasons that go beyond whose heart is on their sleeve.

      • I am not a lawyer, though I do like to play one on the internets, but we might be able to charge Khadr with High Treason.

        But then what. Was Khadr read his rights, offered a lawyer? Is it clear where evidence came from? What evidence was obtained by torture? Did Americans treat Omar in a way that did not break his Charter rights?

        Either there is going to be no trial or rules of evidence will have to be put aside.

      • Vince is right. The charge against Khadr is murder and since the alleged murder did not take place in Canada, it seems unlikely that any prosecutor in Canada would bring charges. The issue here is that the US has charged someone with murder and the process is working its way through the justice system, albeit extremely slowly.

        Can you imagine if the tables were turned and the American public was calling on its government to repatriate an Amercican facing murder charges in Canada?

        Some Canadians might not like the glacial progress in teh US justice system, but they would be incensed if the US Administration had tried to interfere in a Canadian judicial process. I am sure that most Canadians would not want a precedent established that would allow for US or Canadian governemnts to interfere in each other's judicial process.

        • It would be difficult to proceed with a charge of murder against Mr. Khadr in Canada, in the face of section 6(2) of the Criminal Code. A murder committed outside of Canada is not a crime that can be considered a breach of the Criminal Code even if the perpetrator is Canadian. In this case the charges would have to stem from some statute or provision of the Code that allows an exception to the general rule against extra-territorial reach by our courts.

          Mr. Khadr may be charged with a breach of the War Crimes Act, if his action could be considered a war crime. Or he could be charged with either treason or high treason – although that would appear to require a finding he was levying war against Canada. A finding he was levying war against an ally of Canada may not be enough. Or, he may be charged with an act of terrorism.

          Apart from those provisions, it seems hard to find grounds on which he could be prosecuted in Canada for actions that took place in Afghanistan.

          • From wiki:

            High Treason Sec 46 (1c) says "assists an enemy at war with Canada, or any armed forces against whom Canadian Forces are engaged in hostilities, whether or not a state of war exists between Canada and the country whose forces they are."

            I think High Treason might be possible because Khadr was assisting enemy at war with Canada but it also sounds like the assistance has to take place in Canada. So who the hell knows what he would be charged with.

          • High treason and Treason are exceptions to the general principle and, if the accused is a Canadian citizen, the statutes apply to acts done outside of Canada as well. The question in this case would be whether, at the time of the alleged offence, Canada was at war with the Taliban, or any Canadian forces were engaged in hostilities with them. I am not sure it would be enough that, as a NATO member, the alleged activities were committed against one of our allies.

          • I am using Wiki dates and it says Canadian troops first arrived in Afghan in Jan-Feb '02 and Khadr was captured in July '02.

            You will be able to knock me over with a feather if Khadr, or anyone else, ever faces a charge of High Treason. For many people, crimes against your country are so two centuries ago.

            Can't we just give Khadr a hug and send him to counseling instead?

          • You are right. I hadn't realized that his capture occurred so late in the campaign. That would make it easier to entertain a charge of treason, as he was apparently in armed opposition to both Canada and its allies at the time.

            I share your doubt that such a charge would be levied, though. It would have been the appropriate charge to lay against the Serb-Canadian who participated in the detention of a Canadian peacekeeper in the Balkans. A lesser charge was used instead.

          • Evidence is that the other country's troops were attacking HIM by blowing through the wall of the compound he was in (and apparently burying him in rubble). We can argue about whether they had a right to do that, but really, fighting back in a war isn't murder. And if it wasn't war, why is he being tried in a military court? And if he is being tried in a military court, why did the US refuse to provide him the rights of a Prisioner of War?

            It seems to me that defenders of the US legal contortions want to be able to call it a war when it suits their argument and some sort of civilian police action when it doesn't.

            By the way, when is the War Crimes Trial for the mysterious Agent X who was there with the US troops, and who admitted in secret testimony that he dispatched a wounded man with a shot to the head. Or is that a murder trial in a civilian court? I get so confused.

          • "I get so confused."

            I am not surprised with the preceding twaddle you wrote.

          • What's "twaddle" is parsing various arcane laws in an attempt to imagine a way of convicting a child who has been punished physically and pyschologically by his captors, and administratively by an abuse of process so egregious it will lead to his complete freedom the day he gets a fair hearing. Unfortunately that doesn't seem to be imminent.

          • The question in this thread isn't whether he is actually guilty of anything, or has a valid defence to whatever charges the Americans have brought against him. The question under discussion (at least from my posts) is whether there are any charges that could be brought against him at all if he was returned to Canada – since the discussion often turns on people saying "let's bring him back for trial here".
            I don't know what he could raise as a defence – no doubt his many advocates would find a host of things to argue on his behalf – the first question to answer is whether there are any charges that could meet the usual test (in BC anyway) of a "substantial likelihood of conviction". As noted above, it does not seem that murder is a charge that could be heard in a Canadian court, given the facts – but treason, high or otherwise, is a charge that might, I emphasize might, be appropriate.

          • I think you are confused Mike R. :)

            Clearly both of us were discussing whatever happened to Agent X, the guy who shoots injured soldiers, and what should Americans do about him.

          • "The suspect, who cannot be named because the alleged crimes were committed while he or she was a minor…"

    • Whatever the charge, the maximum penalty for murder for a youth offender under our system is 6 years. Khadr has already served it. Case closed.

  2. "Mr. Potter, a Scot apparently, chose to deliver his remarks in fluent French, answered questions in English, and managed to do both with the commanding presence of a Shakespearean stage actor"

    lol Can you transcribe " Whist. Yer havering mon!" into French, it's tough enough in English.

  3. There are some specific anti-terrorism provisions that were added to the Criminal Code after the WTC bombings in 2001. I don't know if they will be used, but it's more likely than a high treason charge. Clortho is, as per usual wrong about people's motives regarding wanting him returned.