Canada: Legal obligation of Canadian government to repatriate Omar Khadr | Letter

The Right Honourable Stephen Harper
Office of the Prime Minister
80 Wellington Street
Ottawa, ON K1A 0A2
Fax: 613-941-6900

The Honourable Robert Douglas Nicholson
Minister of Justice and
Attorney General of Canada
284 Wellington Street
Ottawa, ON K1A 0H8

The Honourable John Baird
Minister of Foreign Affairs
House of Commons
Ottawa, ON K1A 0A6
Fax: 613-996-9880

The Honourable Vic Toews
Minister of Public Safety
House of Commons
Ottawa, ON K1A 0A6
Fax: 613-995-1049

The Honourable Peter MacKay
Minister of National Defence
National Defence Headquarters
Major-General George R. Pearkes Building
101 Colonel By Drive
Ottawa, ON K1A 0K2
Fax: 613-995-8189

Re: Legal obligation of Canadian government to repatriate Omar Khadr

Lawyers Rights Watch Canadais deeply concerned by the Government of Canada’s continuing failure to uphold the Rule of Law in the Omar Khadr case.

The Supreme Courts of both Canada and the United States have clearly established that Omar Khadr’s incarceration is illegal. In 2006, the Supreme Court of the United States (SCUS) ruled in Hamdan v Rumsfeld that the military commission process violated both the U.S. Uniform Code of Military Justice and Common Article 3 of the four 1949 Geneva Conventions. In 2008 the Supreme Court of Canada confirmed the illegality of that process in Canada v Khadr citing with approval the SCUS decision. It also confirmed that the participation of Canadian officials in that process constituted breaches of Khadr’s Charter rights and Canada’s international human rights obligations.

The rulings of these Courts and the content of well established Canadian and international law make it obvious that the tribunal that convicted Omar Khadr was illegal and improperly constituted.  It made its findings on evidence gathered through torture, including evidence gathered by Canadian officials when they knew he had been subjected to torture. The Government of Canada’s subsequent refusal to disclose that evidence to Khadr resulted in the 2008 Supreme Court of Canada decision confirming that both the treatment and lack of disclosure were violations of Canadian and international law.

In January, 2010, the Supreme Court of Canada reiterated that “Mr. Khadr’s ongoing detention so as to deprive  him of his right to liberty and security of the person guaranteed by s. 7 of the Charter” was “ contrary to the principles of fundamental justice”. The Court reminded the government and people of Canada that “all government power must be exercised in accordance with the Constitution” and that Mr. Khadr had the right to a remedy for those breaches in accordance with s. 24(1) of Canada’s Charter of Rights and Freedoms. The Government of Canada has been in flagrant and unconstitutional violation of this Order for over two and a half years.

The Supreme Court of Canada did not order Omar Khadr’s repatriation in 2010 because it found that the courts have limited power over foreign affairs, stating “We do not know what negotiations may have taken place, or will take place, between the U.S.and Canadian governments over the fate of Mr. Khadr.” Since then the Government of Canada’s commitment to the United States to repatriate Khadr was used to induce Khadr to sign a plea bargain. The United States is also now publicly supporting Mr. Khadr’s repatriation. Canada has for many years been the only western democracy and only U.S. ally to allow a citizen to remain incarcerated at Guantanamo Bay. Because of these developments, Canada’s illegal failure to proceed with its commitment to facilitate repatriation can no longer be justified by the foreign policy exception. The repatriation of Omar Khadr must now be dealt with according to the requirement of Canadian law including international law binding on Canada.

The Minister of Public Safety’s statement on 17 July, 2012, that the Government of Canada would further delay Mr. Khadr’s return is a shameful diplomatic about-face.  It is also a gross violation of Khadr’s Constitutional rights and the Rule of Law. There is no Rule of Law when public officials can arbitrarily suspend the rights of an individual citizen on the basis of allegations that have not been proven in a properly constituted court of law, or because he has become the object of a public smear campaign that has made him unpopular with some factions of Canadian society.

Khadr’s conviction was illegal and there is no material evidence on the record linking him to the death of any person on the battlefield. Even if such evidence existed it would attest to acts committed when Khadr was a minor and a victim of the war crime of recruiting child soldiers. The Government of Canada’s stated intention to treat his repatriation as a criminal matter is therefore contrary to the rule of law and Canada’s most basic Constitutional principles. As set out in the Charter of Rights and Freedoms:

“Every citizen ofCanadahas the right to enter, remain in and leave Canada.” s. 6(1)

“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” s. 7

“Everyone has the right not to be arbitrarily detained or imprisoned.” s. 9

“Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” s. 12

Canada’s international reputation for propriety, fairness and legal rectitude has been violated by the highly unusual breaches of these Charter provisions.  The arbitrary choice by the Government of Canada to abandon the Rule of Law gives a green light for abuse of law and fundamental rights to the petty dictators who are responsible for abhorrent violations of human rights and world peace. We must not lose our moral compass.  We must not succumb to fear-mongering. We must uphold the law.

There is no longer any real or imagined legal impediment to the repatriation of Omar Khadr. While some Canadians do not support this course of action, the Government of Canada has an obligation to educate the public about the facts and law.  If the Conservative Party of Canada is really the Rule of Law party it will not play politics with our most fundamental human and constitutional rights.

Every moment of delay in the repatriation procedure that Canada has already committed to uphold constitutes a continued violation of Omar Khadr’s rights and the Canadian Constitution. Canada must act immediately to honour its commitments and to uphold the Rule of Law by bringing Omar Khadr home.


Gavin Magrath, Barrister & Solicitor

Grace Woo, LL.B., LL.M., Ph.D.