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Why Omar Khadr's case is a constitutional crisis for us all

jesse mintz

Omar KhadrIt’s time for a little refresher course in Canadian civil society: Canada’s formal political dependence on Britain came to an end in 1982 with Pierre Trudeau’s Canada Act.  The Act led to the patriation of the Canadian Constitution–you know, that old document that outlines the vibrant democratic system of government we so proudly employ in Canada (well, at least those 59.1 percent of us who voted in our last Federal election anyhow).  Entrenched in our Constitution is a document that affects everyone in Canada, even those who choose not to vote: the Charter of Rights and Freedoms.

The Charter represents the cornerstone of Canadian civil society: it proscribes the democratic, legal, equality and language rights that, together, make up the freedoms we enjoy.  It is the bill of rights that guarantees all of the civil and political rights that make Canadian society the open, free and generally tolerant place (the G20 aside) that it is.

The rights enshrined in the Charter–the right to “life, liberty and security of the person,” among others—are key to Canada’s national self-image, and so you would assume that they would amount to more then a mere trifling concern.  Yet the federal government’s failure to repatriate Omar Khadr is reinforcing a lesson hard learned by many Canadians during the G20: our government is entirely capable, and far too willing, to ride roughshod over our rights. And what’s even scarier is the public’s non-reaction to Khadr’s case, which proves just how complacent many Canadians will be while their rights are stripped.

And it is in this respect that the Charter and the rights it enshrines have been forgotten by many within Canadian society–and if not fully forgotten, then perhaps forcefully consigned a safe distance behind a barricade of riot police as our government elevates fear-mongering and ‘security’ over liberty and legality.

Despite numerous rulings from Canada’s courts, including a recent ultimatum from the Supreme Court demanding our government act to protect his rights during the trial or repatriate him for trial in Canada, Toronto-born Khadr is the last remaining Western citizen held at Guantanamo Bay.  While all other nations have repatriated their detainees—including England, France and most recently Yemen—Canada remains the holdout.

At question here is not Khadr’s innocence or guilt.  Even if we presume the worst of Khadr—that he is indeed guilty of throwing the hand grenade that fatally wounded American medic Christopher Speer in 2002, that he did so unprovoked, willingly and, at the tender age of 15, with complete awareness of his actions and that he is an unrepentant jihadist—his treatment since his arrest would make even those responsible for the Patriot Act blush.

Here are the facts. Khadr has been held for eight years without trial: so much for section 8, 9, 10 and 11 of of the Charter guaranteeing a presumption of innocence until proven guilty, a “fair and public hearing by an independent and impartial tribunal” in a “reasonable time.”  A pretrial hearing revealed that his initial questioning at Afghanistan’s Bagram prison occurred while he was shackled to a stretcher following his hospitalization for severe wounds suffered during the fighting and was sedated for pain.  His first interrogator, identified in a fittingly Orwellian manner only as “Interrogator One,” was later convicted of detainee abuse in a separate case; he threatened Khadr with gang-rape and death to coerce the 15-year-old suspect into talking.  For parts of his interrogation he was hooded and handcuffed with his arms restricted painfully above his shoulders, and he was systematically deprived of sleep before cycles of interrogation. This conduct clearly violates the Charter’s section 12 prohibition on cruel and unusual treatment or punishment.

Khadr’s case represents the first time a Western country will try someone for war crimes allegedly committed as a child since the Second World War, an act that has earned condemnation from the United Nations, Amnesty International, and many others.

The most recent court verdict placed the onus on the Federal Government to protect Khadr’s rights and bring him home; Ottawa, predictably, appealed the verdict knowing full well that with Khadr’s impeding trial set to begin next month they’ve dodged any legal responsibility to act.

So–what are we left with?  Well, for one, we’re left with Omar Khadr facing the grim prospect of a military tribunal in the United States with zero support or interest from Ottawa. But more pertinently we’re left with a government who has shown their true nature yet again—they prorogued Parliament when it raised unappealing questions on the Afghan detainee issue, they quashed civil liberties when people took to the streets to demand change, and they rebuffed the Supreme Court and the international community in what is set to be the first case in modern history of a child soldier standing trial.

All these events add up to a gradual erosion of our civil liberties and constitutional rights, and the blithe indifference of so many Canadians is ominous.

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