IMMIGRATION: Justice for everyone… except Omar Khadr

IMMIGRATION: Justice for everyone… except Omar Khadr

Our Canadian Charter of Rights and Freedoms is as clear as a bell.

It says that “Everyone has the right to life, liberty and security of the person”. No one is excluded from this right. In other words, “everyone” means just that…”everyone”

What happens if this, or any other right, is violated?

Our Charter says that “Anyone whose rights or freedoms… have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

At the age of 15, Omar Khadr, survived an attempt by US forces to blow him, and others, to smithereens. He was accused of killing an American soldier and has now been held at Guantanamo Bay for seven years without trial, tortured, and denied his fundamental right to “life, liberty and security of the person”.

During this time, his own government interrogated him knowing full well that he was a minor and that he had been tortured by his captors. The records of these examinations were dutifully turned over to his American prosecutors so that the verdict in his upcoming trial could be even more predictable.

His lawyers begged our federal government to ask the Americans to let him come home. Our prime minister refused and so Khadr’s lawyers went to court.

The Federal Court Trial Division agreed that Khadrs rights were being violated and ordered Canada to request his repatriation as soon as practicable. Our government appealed.

The Federal Court of Appeal agreed that Khadr’s rights were violated and upheld this decision. Our government appealed.

On Friday, the Supreme Court of Canada also found that Khadr’s rights were being violated and that he was entitled to a remedy. Khadr’s lawyers wanted the Supremes to order our government to ask for his return. Our government argued that the court can’t tell it what to do when it comes to foreign affairs.

The court disagreed saying that our executive “is not exempt from constitutional scrutiny”. This makes sense since our constitution is “the supreme law of Canada and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”.

Even though Khadr’s lawyers proved the violation of a protected right and proved their client’s entitlement to a remedy, the court somehow found a way to deny them what they were asking. The Court said that even though there is an ongoing violation of Khadr’s rights, it would not order our government to request Khadr’s repatriation and left our government “a measure of discretion” in deciding how best to respond.

It is a shocking result, and possibly an unprecedented one, for the court to let an offending litigant an open-ended opportunity to correct its behaviour.

The fact is that our government has had seven years to respond to this situation and has done nothing except assure us that Khadr will be dealt with fairly by our American friends even though our highest court has now confirmed that he has not been treated fairly.It seems that in Canada “everyone” is entitled to our fundamental rights and freedoms and that “anyone” denied them can apply to a court for an appropriate remedy unless, of course, their name is Omar Khadr.

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Guidy Mamann practices law in Toronto at Mamann, Sandaluk and is certified by the Law Society of Upper Canada as an immigration specialist. For more information, visit www.migrationlaw.com or email reporter@migrationlaw.com