Re: Canada’s obligation to Omar Khadr and Ministerial Discretion under the International Transfer of Offenders Act and the amendments proposed by Bill C-5
To: The Right Honourable Stephen Harper, Prime Minister; The Honourable Vic Toews, Minister of Public Safety
From: Gavin Magrath, Barrister & Solicitor; Grace Woo, LL.B., LL.M., Ph.D.
Date: September 27, 2012
Mr. Toew’s reply to LRWC’s letter of August 2, 2012, does nothing to relieve our concern about the Government of Canada’s continuing failure to uphold the law in the Omar Khadr case.
The Supreme Courts of both Canada and the United States have found that the Guantánamo prison regime was illegal and unconstitutional, findings that your government has chosen to ignore.
The Supreme Court of Canada ordered Canada to provide a remedy to Mr. Khadr for the numerous Charter breaches, a legally binding order that your government has also chosen to ignore.
The Government of Canada participated in the negotiation of, and agreed to implement, the plea agreement that was to have Mr. Khadr repatriated in October, 2010, a diplomatic obligation on which your government has reneged. Canada remains the only diplomatic ally of the United States that has failed to repatriate its citizens detained at Guantánamo.
The current application for judicial review is not an excuse, as suggested by Minister Toew’s reply, for silence and inactivity. On the contrary, it has been the silence and inactivity of your government in breach of the Constitution and both Canadian and international law that gives rise to the application. Reliance on this court action as an excuse for further delay supports the opinion of those who allege that the government is engaged in an intentional abuse of process. It is also inconsistent with the obligation to exercise “good faith in discharging public duty” reiterated in Roncarelli v Duplessis,  SCR 121 and again in Goulet v Canada (Public Safety and Emergency Preparedness), 2012 FC 65.
The attempt to increase ministerial discretion through Bill C-5 to amend the International Transfer of Offenders Act does not alter the fundamental premise that Canada is a “free and democratic society.” It does not affect Mr. Khadr’s s. 6 Charter right to enter and remain in Canada, nor his right to a fair and impartial tribunal constituted according to the rule of law, nor the outstanding order of the Supreme Court of Canada that legally obligates your government to remedy the numerous and serious breaches of his Charter rights.
There remains no real or imagined legal impediment to the repatriation of Omar Khadr. Your attempt to circumvent the Canadian constitution and international conventions from which there is no derogation threatens the rule of law, impugns the honour of Canada, and raises questions concerning the competence of the Conservative Party to govern.
The refusal by the Executive to approve the transfer of Omar Khadr to Canada is not only an injustice, but a threat to the rule of law and democracy. We urge you to reconsider your actions and to act promptly to repatriate Omar Khadr.