Omar Khadr and the Charter of Rights and Freedoms

The Case of Omar Khadr

Today (January 29, 2010) The Supreme Court of Canada, unanimously ruled that the Harper government has violated Mr. Khadr’s Charter rights, and that the constitutional breach “continues to this day".

The Court is not insisting that Mr. Khadr be repatriated from Guantanamo, out of respect for the separation of powers and an appropriate reluctance of the courts to intervene in foreign policy affairs. However, the Court has sent a clear message that the government must rectify its infringement of Mr. Khadr’s Charter rights, but is “leaving the government a measure of discretion in deciding how best to respond”. The Court has also clearly warned that it has the power to act more strongly if the government fails to take action.

In my view:

- The Supreme Court’s decision was appropriate. It found that the Harper government has violated, and continues to violate, Mr. Khadr’s Charter rights. It was also appropriate that it respected the separation of powers and the government’s role in foreign affairs—as the Court said, it was “leaving the government a measure of discretion in deciding how best to respond”. I am heartened, however, that the court also made it clear that it is prepared to take stronger action if the government fails to take action.

- Omar Khadr and members of his family have acted and spoken in ways that are offensive to many Canadians. Me included. But our legal principles, including the Charter of Rights and Freedoms and the rights of Canadian citizens, and Canada’s adherence to principles of international law on the protection of child soldiers*, must take precedence over whether we happen to “like” or “approve” of someone or not. Indeed, our principles are easy to uphold when we are dealing with sympathetic people----it is exactly when it isn’t so easy that the value and importance of upholding those principles are the greatest. If they only apply when it’s easy, they aren’t really true principles.

- An additional note on child soldiers: Mr. Khadr was only 15 at the time (now 7 years ago!); he was a child soldier under international legal definitions. International law, to which Canada has adhered*, would keep Mr. Khadr from prosecution. He should have been repatriated to Canada from Guantanamo. Last year, however, Stephen Harper said, “To be a child soldier, you have to be in an army.” It is extraordinary to suggest that it’s OK to have the world protect children who are forced into “official” armies, but to NOT afford similar protections to those children who are forced into guerrilla squads or terrorist groups. The law refers to "armed conflict". The world is, unfortunately, full of situations where children are forced into armed conflict—“official” or not. As a country, Canada has both an international legal obligation, and a principled one, to help and protect those children whenever and wherever possible. Even if the children, or their families, behave in ways that many of us do not like or approve of.

* UN Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, New York, 25 May 2000, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11-b&chapter=4&lang=en