Omar Khadr.2.

• Author: Bowal, Peter

This conduct establishes Canadian participation in state conduct that violates the principles of fundamental justice. Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects. We conclude that Mr. Khadr has established that Canada violated his rights under s 7 of the Charter. Canada v Khadr, [2010] 1 SCR 44, para 25-26

Introduction

The last Famous Cases column described the first Supreme Court of Canada decision involving Omar Khadr. In that 2008 case, the Court decided the US operations in Guantanamo Bay violated Canada's international human rights obligations. Khadr could assert rights under the Charter of Rights and Freedoms from a foreign country.

While Khadr was born in Canada, he had remarkably minimal connection to the country. His family appeared to have rejected the Canadian way of life and took him to Afghanistan to fight for the Taliban. There the 15 year old child allegedly killed one American soldier and blinded another. His life was saved and he was detained at Guantanamo Bay by the United States in July 2002. The next years, including in 2004 when they knew he had been sleep deprived, Canadian officials interviewed Khadr in custody for intelligence gathering and not criminal investigation. The Court characterized this as "active participation" by Canada in human rights violations.

As was the norm in such situations, the Canadians shared the information with the Americans. A few years later, facing US charges for his actions, Khadr requested the interview records.

Khadr was not in Canadian custody or defending against Canadian charges, and he had been personally present at these interviews. His 2003 and 2004 disclosures to Canadian officials were unlikely to provide any unique and miraculous defence to the US charges, although they may have assisted in the prosecution. None of this gave the Court pause. Distinguishing one of its decisions from a year earlier and condemning American actions, the Court summarily determined that Khadr was entitled to Charter protection and his right to liberty was denied because he had not received videos and transcripts of his interrogations by Canadian officials. The Court said the statements taken by the Canadian...