Wake up and Smell the Civil Liberties!

July 5, 2017, Calgary, AB – Let me begin by stating in no uncertain terms that I do not condone the killing of anyone, for any reason. Nor do I condone the conscription of children into their parent’s wars. I completely disagree with the use of torture, coercion, and threats of life-long imprisonment to extract confessions for crimes. And I get angry when governments pay out millions to anyone, as consequences for their bumbling efforts to “speak to their base.”

The Omar Khadr case raises all of these issues: terrorism, child soldiers, government use of torture, bad legislation, restriction of civil liberties to protect safety, and poor adherence to the rule of law. Fundamentally, the case is about consequences that result when governments fail to follow — or simply ignore — the rule of law and fail to uphold all citizens’ fundamental rights and civil liberties. It is this issue the Rocky Mountain Civil Liberties Association finds most troubling.

Omar Khadr was a child soldier conscripted by his father to fight in Afghanistan against Western soldiers. The Americans claim he killed a soldier and wounded another; and at least one US judge who awarded a default judgement of $134.2 Million to the widow of an American soldier killed in Afghanistan appears to believe that claim. Omar Khadr claims he does not remember throwing a grenade or much else about the firefight in which he was badly injured. He was taken to Guantanamo prison where he languished as the youngest person in the complex. While there, he was tortured before being interrogated by Canadian officials who gave their findings to the Americans.  Khadr was told that he would stay in Guantanamo for life unless he confessed. So, he did. To avoid life-long imprisonment, he confessed to killing an American soldier but to this day claims he did not.

A general timeline can be read at: http://www.cbc.ca/news/politics/omar-khadr-s-legal-odyssey-from-guantanamo-bay-to-apology-1.2987034 and http://www.cbc.ca/news/canada/key-events-in-the-omar-khadr-case-1.1153759 Some addition references can be found through: https://en.wikipedia.org/wiki/Omar_Khadr

The 2010 Supreme Court of Canada decision about the government actions concerning Khadr’s imprisonment and treatment in Guantanamo is clear: the Canadian Government was complicit in his torture and ongoing imprisonment to obtain a confession. The 2010 decision states:

Canada actively participated in a process contrary to its international human rights obligations and contributed to K’s [Omar Khadr’s] ongoing detention so as to deprive him of his right to liberty and security of the person, guaranteed by s. 7 of the Charter , not in accordance with the principles of fundamental justice…. (for a summary of these principles, read the CCLA submission to the SCC). The interrogation of a youth detained without access to counsel, to elicit statements about serious criminal charges while knowing that the youth had been subjected to sleep deprivation and while knowing that the fruits of the interrogations would be shared with the prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.

K is entitled to a remedy under s. 24(1) of the Charter .  The remedy sought by K — an order that Canada request his repatriation…

Under the Harper government, Khadr returned to Canada. He has since filed a 20 million dollar claim for the abrogation of his civil liberties. Now, the current Government of Canada has settled out of court for over 10 million dollars, the same amount that the Harper government paid out to settle the Maher Arar case of wrongful imprisonment and torture.

In both cases (and others), the Government of Canada did not do its job to uphold human rights and civil liberties of all of its citizens, and all Canadians have to pay for that choice.

Let’s be very clear about what the result might have been if the rule of law and civil liberties had been upheld in this case. One scenario would have seen Khadr returned to Canada where he would have faced a proper trial, and found guilty of the crimes he is alleged to have committed. Under this scenario, he would likely still be in jail and no payout would have occurred. Another scenario might have been that Khadr was found to be innocent of the charges and released from jail, and no payout would have occurred. A wide range of other scenarios can also be envisioned with a person accused of multiple crimes. Regardless, in all these scenarios, the Government of Canada would have upheld all of our rights and liberties — Khadr’s included. There could be no argument that human rights and civil liberties were not upheld, and the Government would not now be paying millions to Khadr in compensation.

This case is an unfortunate but very real example of what happens when human rights, civil liberties, and the rule of law are not protected. Rather than do the right thing, and in a rush to appeal to its political base, the government chose to undermine rights and liberties. The consequence is that all Canadians are now paying the price. It angers many and no one comes out as a winner. A further consequence is that we might never know if the 15 year old Khadr is truly guilty or innocent of the charges.

Perhaps it is time for governments in Canada and across the globe to wake up and smell the civil liberties before taxpayers are saddled with further needless payouts.

A true test of a healthy and free democracy is whether its elected representatives stand up to protect the rights and liberties of its citizens, even in the face of immense pressure to do otherwise. Paradoxically, when governments fail in this obligation, individual liberties are eroded, those fighting against democracy seem to win, and the rest of us all lose, simply left feeling outraged.

Kelly Ernst, President
Rocky Mountain Civil liberties Association

An edited version is printed in the Calgary Herald, July 7, 2017

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