Further along:
(3) Notwithstanding subsection (1) or (2), a Canadian citizen or a person who owes allegiance to Her Majesty in right of Canada,
(a) commits high treason if, while in or out of Canada, he does anything mentioned in subsection (1); or
(b) commits treason if, while in or out of Canada, he does anything mentioned in subsection (2).
http://forums.canadiancontent.net/hot-topics/129286-canada-high-treason.html
Jeez, it’d be simpler justto strike the “In Canada” out of subsection 1. But thanks, that covers it, it did seem like an odd way to phrase it.
Baffled me as well. I think this allows non-Canadians to be charged for treason if they are in Canada. Weird, though.
The purpose of the phrasing is to make it clear that subsection (1) applies to everyone in Canada, without any difference about citizenship, allegiance, etc. An American who tries to kill Her Majesty in Canada would be guilty of high treason under that provision.
Then, subsection (3) creates a more limited offence, which can be committed outside of Canada, but only by Canadian citizens or persons who owe allegiance to Her Majesty in right of Canada. I think that phrasing would pick up permanent residents who may be temporarily outside of Canada. Nations are usually cautious about creating crimes which can be committed outside their national boundaries.
Obviously, not intended as legal advice; just a comment on a matter of public interest and discussion.
There’s two different issues here: criminal responsiblity of young people under Canada’s criminal law, and the ability to use young people in military operations.
Under international law, the use of anyone under 15 as a combatant is prohibited, subject to a “all feasible measures to prevent” clause: see Military Use of Children. But a nation can take young people between 15 and 17 into their militaries, provided it’s voluntary. So Canada didn’t breach international law by taking 17 year old Uzi into the Armed Forces.
But, under Canadian criminal law, a person under the age of 18 is tried under the Youth Criminal Justice Act, with different procedural rules, stricter protections for the accused, and lighter sentences. So if Private Uzi had gone on a rampage and was charged with criminal offences, I think those protections would have applied; I don’t think there is an exception for soldiers under 18 to be tried as adults. (But I’ve not tried to research the point.)
If this is true … I’m interpreting this to mean that the law was drafted after the actions this kid is charged with, then chaging him with violating it is unconstitutional.
He was talking about the statute authorizing the use of war crimes tribunals for Gitmo detainees, which was passed before Khadr’s capture. Beyond that, procedural changes to the law can be applied retroactively without violating the ex post facto clause (though it’s a matter of some debate whether denial of a civilian trial is a substantive or procedural change.)
In Canada, there isn’t a separate justice system and code for military members, as opposed to the system and law that governs civilians’ behavior? Like the U.S.'s UCMJ?
In the US, the UCMJ is part of the federal code, specifically 10 U.S. Code Chapter 47. It became law through the usual process (Congress, President). A key note is that the members of the US military, popular view notwithstanding, still have their constitutional rights.
Doesn’t Canada have QR&Os? That looks suspiciously like the UCMJ to this retired US Sailor.
True, but it’s subject to a couple of qualifications:
A person cannot be tried under the QR&O for murder, manslaughter, or abduction offences; this restriction is found in s. 70 of the National Defence Act. Those offences can only be tried in the civil courts.
Nothing in the QR&O deprives the civil courts of their jurisdiction; s. 71 of the National Defence Act.
So, if a 17 year old soldier is charged with murder, manslaughter or abduction, the trial would have to be in the civil courts, which would mean under the Youth Criminal Justice Act.
And, if a 17 year soldier is charged with an offence under one of the non-exclusive offences, an issue may arise whether the soldier is entitled to be tried in the civil courts, which again would be under the Youth Criminal Justice Act.
I think that any such prosecution would face almost insurmountable hurdles.
First off, the charge requires that the accused has to have “assists an enemy at war with Canada, or any armed forces against whom Canadian Forces are engaged in hostilities,”. The difficulty here is that the forces in Afghanistan were irregulars.
What does an “enemy at war with Canada” mean? Does it mean all Afghans? Clearly not, because the Afghan government supported the military activities of the NATO forces in Afghanistan. Who exactly was Canada fighting against? Is “al-Qaeda” an enemy in that sense? If so, can the Crown prove that Khadr was acting for al-Quaeda, or was he acting for some other group? Was it simply a loosely organized resistance group, that didn’t take any orders or commands from any other group, like al-Quaeda? And, the Crown would have to prove that that group of irregulars was part of such a larger group in an operational sense. And, the Crown must prove these points beyond a reasonable doubt. Where does the Crown get that evidence, if everyone in that group was killed except for Khadr himself, 13 years ago?
Same for the second part of the offence: “any armed forces against whom Canadian Forces are engaged in hostilities”. The fact that the Americans were fighting against that group doesn’t mean that they were necessarily engaged in hostilities with Canadian forces. Were there any Canadian Forces in the area, engaged in hostilities with this particular group? Was it part of a larger organization that Canadian Forces were fighting, or was it a small cell of resistance fighters that were essentially operating on their own? Again, the Crown would have to prove this element, beyond a reasonable doubt. What witnesses would the Crown have in support of this part of the charge?
Then there’s the procedural requirements of the Youth Criminal Justice Act, which require that any young person who is under investigation can only be questioned in the presence of his counsel, a family member, or some other adult that can look out for his interests. The US did not do that, so anything he may have said at Gitmo is presumptively not admissible as evidence.
Then there’s the witnesses and the accompanying disclosure obligation on the Crown.
First off, the witnesses against Khadr are going to be almost exclusively US military personnel. How does the Crown get those people to testify? A Canadian court cannot force an American in the United States to come to Canada to testify. There are mutual legal assistance agreements between Canada and the US, but those agreements are discretionary. Canada cannot force a US citizen to come north if the US government does not support it. Why would the US government agree to send its military personnel north for the trial? But if the US does not, the Crown has almost nothing to base a charge upon.
Then, even if the US agrees to send those witnesses north, the Crown is required to disclose all of the witnesses that will testify in the Crown’s case, and to give disclosure of all documents, can-says, and so on. Those documents are almost entirely in the hands of the US government. There is no way for Canada to compel the disclosure of those documents from the US, and it strikes me as highly doubtful that the US would disclose the documents. But if the Crown does not provide that disclosure to the defence, the defence would be given a very strong argument that the trial is unfair. (Note that the Crown might argue that the disclosure obligation is met by providing all the documents in the Crown’s possession, but I still think that defence counsel would have a field day with the lack of disclosure.)
And even if the US agrees to disclose at least some of the documents, there is at least one document that would pose a major difficulty for the Crown. The report drafted by a senior office a day after the firefight said that the person who threw the grenade which killed the US soldier had also died in the firefight. If so, that exonerates Khadr. However, the US military changed the wording of the document several months later, to leave it open that it was Khadr who threw the grenade. That change in such a key document would give a defence lawyer a field day. It would also have a knock-on effect on other US documents: each time a new document is introduced, the defence lawyer would say, “we already know that the US military altered one key document; did you alter this one? And if you say you didn’t, why should we believe you?”
And finally, there’s the fact that the Supreme Court of Canada has already ruled that the US detention of Khadr did not meet Canadian standards for the detention of a young person charged with an offence, and that Canadian officials with CSIS were complicit in the US interrogation policies in the case of Khadr. The SCC has held that the federal government infringed Khadr’s rights under s 7 of the Charter by assisting the US interrogations at Gitmo. Given that finding by the Supreme Court of Canada, I would think there is a very strong argument that the defence could successfully apply for a stay of proceedings under the Charter.
When a Crown prosecutor is considering whether to proceed to trial on criminal charges, one of the factors that must be considered is the likelihood of a conviction. If a conviction is highly unlikely in a particular case, then the Crown has a professional obligation not to proceed.
Given all of the above difficulties, I think a Crown prosecutor would be hard-pressed to conclude there was a reasonable likelihood of conviction, so would likely recommend that no charges be laid.
They were ‘forces’ and they were ‘armed’. He was found with them and thus supporting them. It is doubtful that the group he was with would have cared what group they were engaged against.
The charge would be treason, not throwing a grenade. He was there and supporting the enemy. He could have only been there to put bandages on people. If when he was captured he was shackled to the floor preventing him from running away, then he was there to support them. So, still treason.
What does this have to do with anything? That he wasn’t processed or treated correctly for what he was charged with previously hasn’t anything to do with future charges. The only issues that would have to be determined are if he was there, if he was supporting the enemy, if the enemy would have discriminated against shooting at Canadians. It has nothing to do with anything that happened after that even if he was tortured to confess to throwing a grenade. It ain’t relevant considering up until recently he hasn’t even been in our custody.
What evidence do you have that the group he was with was engage in any activity against the Canadian Armed Forces? Just tossing the word “enemy” around is not sufficient for a criminal charge. The Crown has to prove, beyond a reasonable doubt, that the group he was with was engaged in activity against the CAF.
The SCC has ruled that the Federal government was complicit in the maltreatment at Gitmo. He wasn’t in Canadian custody, but CSIS agents were involved in interrogating him. The US consciously engaged in sleep deprivation tactics for three weeks before CSIS came to Gitmo, to “soften him up” for the CSIS interrogations, with the knowledge of CSIS.
Even though he wasn’t in Canadian custody, the Court ruled that conduct by CSIS violated his rights under s. 7 of the Charter. That prior government misconduct, and the ruling by the SCC that the Feds violated his constitutional rights, could be a major stumbling block in any criminal prosecution. Pre-trial mistreatment of an accused by the government can in some cases taint the entire prosecution, leading to a stay.
I’m not the one who should be charging him. I don’t have to prove a damned thing. That he was fighting in the theater that our forces were active in should be enough proof for anyone with half a brain. Now whether that includes our courts, I’m not so sure of. If they expect the same arrest procedures to be followed by a bunch of US soldiers as they’d expect of the RCMP would essentially eliminate anyone captured in theater from being charged for anything.
And whatever CSIS may or may not have done isn’t relevant to bringing the charges forward. It may prevent them from proceeding, but it lets our soldiers who are fighting for our country, fighting for our fellow Canadians, know that their government supports them and will do its best to keep animals like this guy off Canadian streets.
You asked why he wasn’t charged with treason and Northern Piper gave you a bunch of likely reasons. No one gives a crap that you think he should be charged anyway cuz you think he’s scum.
He is scum and should be charged with treason. The reasons Northern Piper gives are reason he may not be convicted. The precedent should be set that Canadians don’t side with the enemy against fellow Canadians on the field of battle. We owe it to the soldiers we send to fight for us at the very least.
I’m still not clear how Khadr was charged with murder.
I do not think he has been treated fairly and I think the governments actions with regards to Khadr have been unCanadian.
In other words, Canada does have a separate legal system for the armed forces, but just a few crimes are tried by the civilian system regardless. This may be of interest to you: for the US, all (or almost all) crimes which are not military-specific can be tried under either the UCMJ or the civilian system; the usual practice AFACT being that whichever system gives the harsher punishment gets the honor of prosecution.
We owe them a paycheque and proper treatment when they are injured. If they don’t like that then they can go get another goddamn job.