What the Reaction to Omar Khadr Says about our Priorities

Much has been made of the quantum of settlement between the Canadian Government and Omar Khadr. Substantially less has been made of Mr. Khadr’s rights pursuant to the Canadian Charter of Rights and Freedoms (the “Charter”). Discussion surrounding Mr. Khadr has been largely void of age old features which comprise foundational tenets of the Canadian criminal justice system.

Criticism of Mr. Khadr’s settlement has been expressed in droves. Various news outlets across Canada and the United States have shared the results of the Angus Reid Institute’s public opinion poll depicting that 71% of Canadians disagree with the decision to settle with Mr. Khadr. Seventy-one percent is an obvious and overwhelming majority. But here is the catch – the Charter is in place to protect the minority. Where minority rights are concerned, the danger of relying on the democratic “majority wins” process is obvious. This is why the protection of minority rights has been designated to the courts, and not publically elected officials who cater to the perceived demands of the majority. It logically follows that the bulk of Canadians will be in disagreement with a decision made on the basis of protecting minority rights, leaving public opinion polls on the subject of minimal insight, value, or utility.

The Charter grants individuals the fundamental right to challenge the legality of their detention; this right was not extended to Mr. Khadr. Taking things one step further, Mr. Khadr was unable to effectively defend himself as he was not fully apprised of the case made against him. As Canadians, we are afforded the right of making full answer and defence against any and all criminal allegations. An accused individual is entitled to disclosure of all of the information possessed by the Crown so as to enable the preparation of an adequate and fulsome defence. In theory, disclosure creates a level playing field upon which the Crown and the accused can each present their case and await the verdict. Mr. Khadr’s repeated requests for disclosure from the Canadian Government were denied until 2008 when such disclosure was ordered by the Supreme Court of Canada.

The majority’s dissatisfaction with the settlement between the Canadian Government and Mr. Khadr is often accompanied by the allegation that Mr. Khadr is guilty of war crimes and therefore should not be afforded the fundamental rights enjoyed by every other Canadian citizen. However, adhering to the stereotype of the polite Canadian, our case law has developed in such a manner that one is presumed innocent until guilt is proven beyond a reasonable doubt. The presumption of innocence is so highly valued that it has also earned its place in our Constitution. The Supreme Court of Canada, whose language is generally measured, has powerfully stated that:

“…the presumption of innocence is crucial. It ensures that, until the state proves an accused’s guilt beyond all reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and social justice. The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law-abiding members of the community until proven otherwise.”

Unfortunately, it appears as though Canada’s long-standing recognition of and respect for the presumption of innocence has been abandoned in regard to Mr. Khadr. The only “proof” that Mr. Khadr is responsible for the crimes alleged against him are statements he made as a child, in the absence of legal counsel or any adult who had his best interests in mind, while detained at Guantanamo Bay at a time when the military commission regime in place was determined by the Supreme Court of the United States to constitute clear violations of fundamental human rights protected by international law, and after being subjected to a three week schedule of sleep deprivation intended to make him more malleable and compliant in the interrogation process. Coerced confessions such as Mr. Khadr’s are manifestly unreliable and certainly not enough to meet the high standard of proof for determining criminal guilt in Canada.

With the presumption of innocence out the window, the labelling of Mr. Kadhr as a “terrorist” is often used as justification for the many Charter breaches he experienced. However, and thankfully for many of us, application of the Charter is not contingent upon whether or not an individual is a good or bad person who has done good or bad things. Instead, the Charter applies to all Canadian citizens, Mr. Khadr included. The events which lead to the detention of an individual do not impact the right to receive treatment prescribed by the Charter while in detention.

In sum, the enormously high volume of discussion surrounding the quantum of damages received by Mr. Khadr severely minimizes the importance of numerous rights which are fundamental to the Canadian criminal justice system and imperative to the existence of a constitutional democracy.

 1 R v Oakes, [1986] 1 SCR 103 (SCC) at para 32.

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