The Case of Omar Khadr

Why did the Canadian government just settle Khadr’s file for $10 million?   Here are some of the laws that the Harper government broke when handling Khadr’s file:

(ii)Convention on the Rights of the Child (CRC)

Canada has a duty under the CRC to “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child” (Article 19(1)). A child is a person under the age of 18 (Article 1).

In addition, Canada must ensure that “[n]o child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment”, that “[n]o child shall be deprived of his or her liberty unlawfully or arbitrarily” and that the “arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time” (Article 37(a) and (b)).

Canada must also ensure that “every child deprived of liberty shall be separated from adults” and “have the right to maintain contact with his or her family through correspondence and visits”, except in exceptional circumstances (Article 37(c)). Further, every child in custody “shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action” (Article 37(d)).

Canada also has a duty to “take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts” (Article 39).

Finally, Canada has recognized “the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth” (Article 40(1)).

The CRC imposes on Canada some specific duties in respect of Mr. Khadr. Canada was required to take steps to protect Mr. Khadr from all forms of physical and mental violence, injury, abuse or maltreatment. We know that Canada raised concerns about Mr. Khadr’s treatment, but it also implicitly condoned the imposition of sleep deprivation techniques on him, having carried out interviews knowing that he had been subjected to them.

Canada had a duty to protect Mr. Khadr from being subjected to any torture or other cruel, inhuman or degrading treatment or punishment, from being unlawfully detained, and from being locked up for a duration exceeding the shortest appropriate period of time. In Mr. Khadr’s case, while Canada did make representations regarding his possible mistreatment, it also participated directly in conduct that failed to respect Mr. Khadr’s rights, and failed to take steps to remove him from an extended period of unlawful detention among adult prisoners, without contact with his family.

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)

Legal Rights

  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.
  2. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
  3. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

  1. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

The Supreme Court of Canada applied these laws in their analysis of the government’s conduct and cam to the following conclusion in Canada (Prime Minister) v. Khadr, [2010] 1 SCR 44, 2010 SCC 3 (CanLII):

“This Court declares that through the conduct of Canadian officials in the course of interrogations in 2003-2004, as established on the evidence before us, Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to 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, contrary to the principles of fundamental justice. “

 

This finding put the government on the hook for their own legal fees, Khadr’s legal fees, and the damages that flow from their breach.  A review of the case law on similar findings shows that the $10 million in damages is in line with what other cases came up with.  It’s not about Khadr – it’s about making sure that the Canadian government thinks twice before allowing Canadians abroad, particularly children, to be tortured in inhumane conditions.  Sending CSIS agents to participate in that torture was Harper’s decision.  Canadians elected Harper as Prime Minister, and now we have to accept responsibility for his actions, whether we like it or not.   Trudeau did that, because he had no other option.  There is no appeal from the Supreme Court of Canada.