Op-ed: Minister Toews Must Approve Omar's Transfer Now

Photo from Hill Times

By Pearl Eliadis and Audrey Macklin, published in the Hill Times, 9 July 2012 

Countries, like people, are considered to be more respectable and reliable when they demonstrate certain basic characteristics. These include traits like trustworthiness, keeping promises, and stepping up when it is your turn to act.

By these standards alone, Canada’s standing has plummeted as a result of its handling of Omar Khadr. Omar remains in US custody, despite two Supreme Court of Canada decisions declaring that Canadian officials had been complicit in the violation of his fundamental rights at Guantanamo Bay, and despite Canada's undertaking to the United States to facilitate Omar's transfer to Canada.

The facts should be familiar by now: Mr. Khadr, a Canadian citizen, was 15 years old when he was taken prisoner in 2002 by U.S. forces in Afghanistan. He was charged with war crimes for throwing a grenade that killed an American soldier during a battle. Omar spent three months in US military detention, where his chief interrogator was a US soldier implicated in torturing Afghan detainees to death.  Omar was then transferred to Guantanamo Bay, and subject to a regime that even the US Supreme Court found to breach international law.  Despite his youth, Omar was placed in adult detention facilities and received no age appropriate treatment.    

In 2003, Canadian officials interrogated 16 year old Omar, knowing that, at a minimum, he had been subjected to weeks of sleep deprivation to facilitate their interrogation of him.

On January 29, 2010, the Supreme Court of Canada declared that Canadian participation in this conduct violated the Charter’s principles of fundamental justice:

“Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.”

The Supreme Court noted that a request for repatriation would be an appropriate remedy for these violations, but nonetheless declined to order the government to undertake this or any other specific action to return Omar to Canada.

The Court seemed to trust that its declaration would be enough, and that an executive committed to the rule of law would respond appropriately without the need for a specific direction from the Court. The obvious next step should have been vigorous and urgent measures to remedy the violation of these “most basic Canadian standards.”

That trust in the government's commitment to the rule of law turns out to have been misplaced.

In October 2010, concurrent with a plea agreement in which Omar was to serve another year in US military custody, Canada and the United States exchanged diplomatic notes confirming their agreement that Omar would be transferred to Canada to serve the remainder of his sentence. In spring 2011, Omar submitted to Minister Vic Toews his request to be transferred to Canada.  Omar finished serving the additional year in October 2011. The US approved the transfer in April 2012.

Canada committed to transferring Omar to Canada to serve the rest of his sentence in 2010. The Minister of Public Safety received Omar’s application for transfer since early 2011, and has been in a position to provide consent since then.  The Minister has had more than ample time to prepare for Omar’s return. Omar Khadr has fulfilled all of the commitments he made in the plea agreement. The United States has fulfilled its obligations under the plea agreement and the exchange of diplomatic notes. There is no justification whatsoever for the Canadian government's foot-dragging. It is, in a word, disgraceful.

Canada violated the fundamental Charter rights of a Canadian citizen, and did so while he was a child, not to mention a plethora of international human rights agreements that Canada pledged to the international community to honour.  Canada has failed to comply with the undertakings it voluntarily undertook in an exchange of diplomatic notes signed more than eighteen months ago with our most important trading partner and neighbour. Canada has breached its legal, political and moral obligations to its citizen, its neighbour, and to the international community.

Those who seek to rationalize the Prime Minister's flouting of these commitments should consider their position more carefully: If Omar Khadr cannot trust Canada’s word, none of us can either. Or, as scholar Reg Whittaker recently remarked, “either Omar Khadr has certain basic rights, or no Canadian does. Which is it?”

Enough, already.   


- Pearl Eliadis, Human Rights Lawyer and sessional lecturer in Civil Liberties, McGill University

- Audrey Macklin, Professor of Law, Chair of Faculty Advisory Committee of International Human Rights Program, counsel to Asper Centre for Constitutional Rights, University of Toronto

Photo from Hill Times.