Debates of the Senate (Hansard)

2nd Session, 39th Parliament,
Volume 144, Issue 72

Wednesday, June 18, 2008
The Honourable Noël A. Kinsella, Speaker

The Senate

Motion Urging Government to Negotiate with the United States for the Immediate Repatriation of Omar Khadr Adopted

On the Order:

Resuming debate on the motion of the Honourable Senator Dallaire, seconded by the Honourable Senator Day:

That the Senate call on the Government of Canada to negotiate with the Government of the United States of America the immediate repatriation to Canada of Canadian citizen and former child soldier Omar Khadr from the Guantánamo Bay detention facility;

That the Senate urge the Government of Canada to undertake all necessary measures to promote his rehabilitation, in accordance with this country’s international obligations on child rights in armed conflicts, namely the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict; and

That a message be sent to the House of Commons to acquaint that House with the above.—(Honourable Senator Jaffer)

Hon. Mobina S.B. Jaffer: Honourable senators, I rise today to speak in response to Senator Dallaire’s motion to urge the government to negotiate with the United States for Mr. Khadr’s immediate repatriation. I speak to this motion because the government has become schizophrenic in its values and there is an urgency given that young Omar Khadr’s trial is set for this week.

I fully agree with Senator Goldstein when he said that the issue before us is not a matter of opinion, discretion or a contestable interpretation. What is preventing this government from acting? Why has Canada remained silent for so long? This government’s concern, honourable senators, and the question that should be the focus of our debate today is: Should Canada intervene in the case of Omar Khadr?

I recognize that this is a difficult question to answer because we want to respect U.S. sovereignty and its judicial process. I find it difficult to defend certain members of the Khadr family because they harmed my community very much.

Honourable senators, Canada has cooperated for many years and maintained a respectful and diplomatic relationship with our neighbour. This is evident in our collective efforts to restore justice and protect human rights in Afghanistan. Why should we intervene in this particular case?

One reason is that Canada has an obligation to protect the human rights of its citizens. Mr. Khadr has been detained in Guantanamo Bay in violation of international human rights laws, and the fact is that the Supreme Court of the U.S. agrees and the Supreme Court of Canada agrees, not to mention the legal scholars and international organizations that have been paying careful attention to this case.

Another, and more significant, reason to intervene is that the United States has shown that it is not capable of observing both the rule of law and its own precedents and values in its judicial proceedings of Mr. Khadr’s case. The U.S. has failed to maintain judicial integrity in its continued refusal to act impartially in Mr. Khadr’s trials. Mr. Khadr has not been afforded an impartial decision maker. He has been and will be prosecuted by the people who captured and detained him and labelled him an enemy combatant in a non-adversarial proceeding. These facts were cited by Navy Capt. John W. Rolph, the Deputy Chief Judge of the Military Appeals Court, in U.S. v. Khadr.

A non-adversarial proceeding means that Mr. Khadr has not been afforded legal representation and has not been given an opportunity to submit evidence to challenge his status as an enemy combatant. This lack of due process seriously undermines the integrity of the judicial process.


Honourable senators, this is the same military tribunal that stated:

Even ‘unlawful enemy combatants’. . .

— deserve to —

. . . be tried by a ‘regularly constituted court affording all the judicial guarantees recognized as indispensable by civilized people.’.

These are the words of Justice Holden of the United States Court of Military Commission Review. It is also the view of the U.S. Supreme Court. Therefore, why has Mr. Khadr not been afforded the judicial guarantee of due process?

Mr. Khadr has been detained without trial for six years. His trial date has been continuously delayed without an opportunity to petition for a writ of habeas corpus because the U.S. government passed a law to take away this fundamental right. Last Thursday, on June 12, the U.S. Supreme Court ruled that this practice is wrong and is in violation of the U.S. Constitution.

Clearly, the United States has shown its incapacity to observe its own values and legal precedence by letting its inherent bias cloud its judicial process.

The U.S. Military Tribunal’s inability to stay impartial does not stop them. Despite the undisputed fact that Mr. Khadr will be tried for the acts he allegedly committed when he was a 15-year- old, not when he was 18 or 21, the U.S. military tribunal refused to consider him as a child soldier and denied the defence counsel’s motion.

The rationale for this ruling is tenuous at best. The commission does not find the arguments to be germane to the issue before it and that last-in-time rule as a catchall makes the Military Commission Act superior to all prior statutes, treaties and customary international law because it is the most recent rule of law that has been adopted by Congress.

The reasoning here is obviously flawed because the Child Soldiers Optional Protocol is germane to Omar Khadr’s case. The Optional Protocol expressly prohibits the recruitment and use of children as soldiers and it discourages the recruitment of children under the age of 18 into the armed forces.

Under the Child Soldier Optional Protocol, anyone under the age of 18 is a child. It implicitly recognizes the special treatment that should be afforded to children under the age of 18 who were trained and used as soldiers in armed conflicts.

In addition, the U.S. cannot invoke the last-in-time rule to deny Mr. Khadr his fundamental human rights. No matter how authoritative and legitimate its application may be, the last-in- time rule cannot be used to override the protection of fundamental human rights that international laws are designed to protect.

Furthermore, recently, the judge who has been overseeing the entire process decided to suddenly retire before Mr. Khadr’s trial proceeds.

These are only a few examples of the inability of the United States to maintain the integrity of the judicial process and to assume the role as an impartial decision maker in handling Omar Khadr’s trial.

Honourable senators, we must ask why civilized nations have legal systems in place. Why do we value fairness and equity guaranteed by the judicial process? The legal system is there to play a vital role in the assurance of justice and when one system fails, it is another’s obligation to intervene.

Canada’s intervention is essential because it is likely that Mr. Khadr’s health will continue to deteriorate until Canada intervenes to repatriate him. There is no proper retroactive remedy that can be afforded to Mr. Khadr for the treatment and the resulting injuries he has received.

According to Amnesty International’s report on the case of Mr. Khadr published in April of this year, there are numerous pieces of evidence to show that Mr. Khadr has been subjected to threats and inhumane and degrading treatment that no inmate, let alone a child, should endure. There is also evidence of the deterioration of Mr. Khadr’s psychiatric and physical health from his treatment. All of these issues have been documented in a brief submitted to the Standing Senate Committee on Human Rights by the University of Ottawa’s Faculty of Law.

No human being, especially a juvenile, deserves abuse and torture. No juvenile should endure the agony of violent interrogation that is allegedly occurring in Guantanamo Bay.

I return to my initial comment that it seems our government has become schizophrenic in its values. Why are we choosing to ignore Mr. Khadr while we are vigorously involved in protecting the human rights of other people as we are in Afghanistan?

Has this government really become schizophrenic on the issue of choosing which human rights to protect? I wish to believe this is not the case. I want to believe this contradictory behaviour is the result of a grave error.

Honourable senators, when it comes to protection of fundamental human rights, especially of our citizens, we must have a responsible government that speaks with one voice for all our citizens.

Some Hon. Senators: Hear, hear!

Senator Jaffer: We all grieve the deaths of many of our soldiers in Afghanistan. They have gone to protect other peoples’ rights. As soldiers have died to protect these fundamental human rights — and they should never be compromised — there is no room for the discriminatory application of human rights.

When it comes to fighting against terrorism and for the protection of our national security, we also speak with one voice. We all condemn terrorism, but we also stand by the protection of human rights.

There seems to be a belief that repatriation of Omar Khadr means that we want Mr. Khadr to be excused without a trial and reinstituted in our society upon arrival to this country. I am not suggesting that. This repatriation must occur so Mr. Khadr can be afforded the simple, most basic fundamental human rights as a human being.

Some may argue the recent decision by the U.S. Supreme Court to reinstitute the alien detainee’s habeas corpus rights has made the repatriation of Mr. Khadr unnecessary. Honourable senators, reinstituting the right to the habeas corpus petition does not mean Mr. Khadr will be afforded the fundamental rights that have been denied by the U.S. It does not mean Mr. Khadr will be afforded all his due process rights.

Immediate repatriation must happen so that Mr. Khadr can be allowed family visits while being rehabilitated or denied, whatever is fit under the rule of law. That must happen so he can have access to proper nutrition, medical attention and legal representation. That must occur so that he can be free from physical and mental abuse. Discussions about Mr. Khadr’s return to Canada are not premature.

Any concerns with regard to Omar Khadr being a threat to national security and an alleged terrorist can effectively be addressed without deprivation of Mr. Khadr’s rights under international law and without the further infliction of irreparable physical and mental harm on Mr. Khadr. This is not impossible.

Honourable senators, the time for action is not tomorrow. We must negotiate and open up a dialogue with the United States today. Canada’s goal in its negotiation with the United States should be for the immediate repatriation of Mr. Khadr in exchange for a promise of a full trial that is in line with applicable domestic and international law.

Our government should also provide assurances that there will be monitoring and rehabilitation of Mr. Khadr as necessary after the trial in exchange for him remaining in Canada thereafter.

Honourable senators, this situation is not beyond what is occurring in other countries. Many countries have acted to ensure the fair and impartial trials and repatriation of their citizens. For example, a European Parliament resolution on the fight against terrorism was passed in 2006 that called on the U.S. administration to ensure:

. . . that every prisoner. . . be treated in accordance with international humanitarian law and be tried without delay in a fair and public hearing by a competent, independent and impartial tribunal.

In 2003, the Australian government reached an agreement with the Bush administration to no longer delay the trials of its citizens held in Guantanamo Bay and to guarantee the fundamental rights of impartial representation and the rights of its citizens. The same year, British Prime Minister Blair, as well as the British Attorney General, held talks with the Bush administration to ensure that British citizens held at Guantanamo Bay would be guaranteed fair and impartial representation in the trial.


This included the right to choose their own lawyers, the right to appoint a U.K. lawyer to serve as a consultant on the defence team, and the right to decide to what extent they wish the appointed military counsel to participate in the preparation of their cases.

The time to act is now. Canada, just as any other nation that has acted, must assert its sovereignty in maintaining its commitment to the observance of international laws and the protection of the fundamental rights of Canadian citizens.

Honourable senators, recently our Standing Senate Committee on Human Rights was in Geneva, where people told us we should be embarrassed because we have not brought Omar Khadr, a child soldier, back to Canada. Canada has a reputation for rescuing and helping child soldiers all over the world, and Canada’s credibility as a champion of rescuing child soldiers has suffered.

Let me share with you my personal experiences in this matter. As part of a parliamentary delegation to Sierra Leone, I met a young child soldier who had no limbs. When I asked him what had happened to him, he said that he had been abducted and had to fight as a child soldier. When he tried to flee, his limbs were cut off. He further described in detail how his captors had hacked his right leg, then his left hand, then his left leg and, lastly, his right hand. He then went on to say, “Canadians rescued me, and now Canadians are helping me.”

As your envoy to Sudan, I had many occasions to go to Northern Uganda, to Gula, to meet with ex-child soldiers. While there, I spoke with a young man and his brother. The young man described how he had been drugged and then given a knife. In this drugged state, he hacked his own mother’s ears, lips and toes. They both went on to say that Canadians have come to rescue them and are helping them.

Honourable senators, we have a child soldier, a Canadian citizen, detained at Guantanamo Bay. When will we rescue and help him? Yes, our credibility as a champion of human rights has suffered, and I respectfully state that we must act now on this matter.

I leave you with this thought from Justice Chaskalson, President of the Constitutional Court of South Africa:

It is only if there is a willingness to protect the worst and the weakest amongst us that all of us can be secure that our rights will be protected.