On Friday November 13th, the CCLA will argue before the Supreme Court of Canada in a case that has serious implications for Canada’s commitment to uphold our fundamental rights and freedoms. The CCLA will argue that the federal government must comply with an order of the Federal Court to seek the repatriation of a Canadian citizen currently being held in Guantanamo Bay. The citizen, Omar Khadr, was only fifteen years old, and therefore a minor, when he was sent by US authorities to Guantanamo Bay seven years ago.
CCLA will argue that the Government of Canada must seek the repatriation of Mr. Khadr to Canada. Canadian government officials went to Guantanamo to interrogate Mr. Khadr knowing that the United States had ‘prepared’ him for our questioning with weeks of grave mistreatment. Our government has a duty to protect Mr. Khadr, and obligation under the Constitution to treat him fairly – no matter how politically unpopular his family may be. The continued refusal to seek his repatriation is a violation of Mr. Khadr’s right to life, liberty and security of person and runs counter to the principles of fundamental justice enshrined in the Charter.
On Friday at 10 am EST you can watch the arguments live over the web at http://www.scc-csc.gc.ca/case-dossier/cms-sgd/webcast-webdiffusion-eng.aspx?cas=33289.
The Case of Omar Khadr
- The case concerns the ongoing detention of Omar Khadr, a Canadian citizen who has been unlawfully detained by US authorities for seven years at Guantanamo Bay. At the time he was picked up by US forces in Afghanistan in 2002, Mr. Khadr was only fifteen years old, and therefore a minor, but still sent to Guantanamo Bay to be held with adult prisoners.
- Last year the Supreme Court of Canada condemned the Guantanamo Bay regime as constituting a “clear violation of fundamental human rights protected by international law”, and Canada’s participation as being contrary to the principles of fundamental justice protected by our Charter.
- In April 2009, the Federal Court of Canada ruled that Canada must seek the repatriation of Mr. Khadr to Canada. Justice O’Reilly held that the Canadian government has legal obligations to protect Omar Khadr as a Canadian citizen, to protect him as a minor, to protect him from unlawful and prolonged detention, to ensure he be free from torture or other ill-treatment, and to promote his “physical, psychological and social rehabilitation and reintegration”. The failure to do so results in the Canadian government’s failure to uphold its legal obligations regarding fundamental justice under the Canadian Charter of Rights and Freedoms, and its failure to uphold its legal obligations under international human rights law particularly relating to the Convention Against Torture and the Convention on the Rights of the Child.
- Justice O’Reilly, in the Federal Court, also found that the Canadian government took steps which made it complicit in the continued denial of Mr. Khadr’s fundamental rights and freedoms, that it failed to seek his removal from extended unlawful detention among adult prisoners, and that it was complicit in unlawful interrogation techniques employed at Guantanamo Bay.
- Justice O’Reilly’s decision in the Federal Court was upheld on August 14th, 2009 by the Federal Court of Appeal.
Despite the rulings of the above courts, the Canadian federal government has still refused to seek Mr. Khadr’s repatriation, and is appealing the Federal Court of Appeal’s decision to the Supreme Court of Canada, this Friday, November 13th.
CCLA’s Intervention in the Supreme Court of Canada
The CCLA will intervene this Friday in the Supreme Court of Canada appeal of the Federal Court decision regarding Mr. Omar Khadr.
In its intervention, the CCLA states:
(1) that the Government of Canada must seek the repatriation of Mr. Khadr to Canada, in compliance with Justice O’Reilly’s Federal Court decision.
(2) Canada has a duty to protect Mr. Khadr, and the continued failure to seek his repatriation is a violation of Mr. Khadr’s rights to life, liberty and security of person and the principles of fundamental justice upheld by the Charter, notwithstanding that Mr. Khadr is being held abroad.
(3) Canada’s past complicity in the Guantanamo Bay interrogation process, and its continued refusal to seek Mr. Khadr’s repatriation, demonstrate a causal connection to his deprivation of rights and materially increase the likelihood that his rights deprivations will occur and continue.
(4) None of Canada’s actions to-date regarding Mr. Khadr demonstrate that it has complied with the constitutionally imposed obligations of procedural fairness.
(5) The rights deprivations of Mr. Khadr trigger constitutional values of fundamental importance to Canadian society, and therefore the decision of the Canadian government to not seek Mr. Khadr’s repatriation is a decision which must be reviewed by the courts.
(6) Canada is obligated to conduct external relations in a manner which fosters application of international law, in this case, compliance with the Geneva Conventions, the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, and the Convention Against Torture.
(7) The remedy that the Canadian government seek the repatriation of Mr. Khadr is perfectly tailored to a breach of Mr. Khadr’s Charter rights. Here, it is important to note that the issue is not whether the US Government will agree, but rather, whether the Canadian government has done what it should to ensure the protection of Mr. Khadr’s constitutional rights.
To read the factum of the CCLA click here.
