Omar Khadr and the Charter of Rights

By Kathleen Copps, | April 28, 2020

Canada’s Charter of Rights and Freedoms is 32 years old this month. While the Charter’s guarantee of protection and equality before the law should be celebrated, we must remain vigilant. Our individual liberty and access to fair treatment before the courts depend on the maintenance of our Charter rights, their universal application and enforcement. Violations of those rights must be remedied or the cherished laws of our Charter only exist as lofty words.
While there are many examples of blatant disregard for protections guaranteed by the Charter and international law, many Canadians agree with Distinguished Professor of Law at University of Ottawa Constance Backhouse that the case of Omar Khadr cries out:

“Some cases enshrine the defining moments of their time. Omar Khadr’s is one. Future generations will rightly judge our shocking dereliction of responsibility in this matter [and] our collective Canadian failure to extend justice and humanity”.

Khadr, only 15 when seriously wounded and captured by U.S. Forces in Afghanistan, was not only denied protection under the U.N. Convention of the Rights of the Child, but was certainly denied protection under the Charter of Rights and Freedoms.

In fact, the Supreme Court of Canada declared in 2010 that the government of Canada had violated Khadr’s Charter rights and that “through the conduct of Canadian officials in the course of 2003-2004 interrogations … Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to his ongoing detention so as to deprive him of his right to liberty and security of his person as guaranteed by the constitution, and contrary to the principles of fundamental justice.”

Although remedial action to repatriate Khadr and end his Guantanamo detention was approved by Parliament, ordered by the Federal Court and confirmed by the Federal Court of Appeal, Stephen Harper refused to act.

As a result, in Guantanamo Khadr was forced to appear before a widely condemned, extra-judicial Guantanamo military ‘hearing’ based on falsified U.S. reports and statements obtained through torture — a mockery of justice, where the only evidence presented by prosecutors clarified Khadr’s innocence rather than his guilt. His sentence, in violation of the Geneva Conventions — which prohibit sentencing by an improperly constituted court — is itself a war crime and another shocking denial of justice.

Sam Morison, Khadr’s U.S. Pentagon-appointed lawyer (Department of Defence) has pointed out that, within fact and law, Khadr is illegally imprisoned. According to Morison: “The U.S. is trying to impose a form of martial law on the trial world … There is no reason why the international community has to accept that.”

Almost two years after Khadr’s repatriation, rather than redress the violation of his international, human and Charter rights, our government chooses to accept this “form of martial law on the trial world” and therefore persists in continuing Khadr’s illegal incarceration.
But those of us who value our Charter of Rights and the necessity to remedy their violation, reject this profound corruption of the Canadian legal system.
The Free Omar Khadr Now Campaign has reached out to our elected officials and asked them to redress this stain on our collective conscience. Every MP and Senator has received a letter urging them to respond with a statement of support for Khadr’s release.

Recent remarks from our politicians indicate that common ground of support for Khadr reaches across party lines.
Wayne Marston, Official Opposition Human Rights Critic, has responded positively to the message of this campaign, and stated his intention to write to the Justice Minister requesting Khadr’s immediate release.
Last October, the Green Party issued a media release criticizing government interference in the judicial process and calling for Khadr’s release:

“…Canadians have always cherished a high standard for Human Rights. Even if Omar did commit a crime, which seems increasingly doubtful based on the evidence of the past decade, has he not more than paid for this supposed crime through his imprisonment as a child and the continued torture he has been subjected to over the past 11 years?”

In August of last year, Justin Trudeau stated: “Omar Khadr needs to be treated the way we treat Canadians according to the rules that exist, according to the laws and principles that govern,” adding the former child soldier should be treated like “any Canadian who has been incarcerated outside of the country.”
Previously, a remarkable unity among all opposition parties finally led to Khadr’s long-delayed repatriation. We require a renewed dedication from politicians who respect the rights and remedies enshrined in our Charter, to launch a parliamentary initiative in order to end this shameful chapter in our history.

On Wednesday April 30, 2020 at 9:30 a.m. Khadr will be appearing in the Court of Queen’s Bench in Edmonton for an appeal hearing. Dennis Edney, lawyer for Khadr is set to appeal a previous decision​ which​ den​ied Khadr’s​ request to be transferred out of Edmonton’s federal penitentiary into a provincial facility.

Kathleen Copps is a retired B.C. teacher and member of the Free Omar Khadr Now Committee.
Check out the Free Omar Khadr Now Campaign website and facebook page.
Image courtesy of Free Omar Khadr Now Campaign

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