The trial of Omar Khadr.

Great Debates
81

Sounds to me that what you’re wanting is a show trial: a trial of Khadr, without regard to whether he will be convicted, but because it’s politically important to show support for the military by charging him.

We don’t do show trials in Canada.

The Crown prosecutor has to be satisfied, based on the evidence and the applicable legal principles, that there is a reasonable likelihood of conviction. It that test is not met, and the Crown does not think that there is a reasonable likelihood of conviction but proceeds to trial for other motives, such as a need to “support the troops”, then the the Crown prosecutor would be committing the civil tort of malicious prosecution. The Crown would also likely be breaching the accused’s Charter rights.

We don’t institute criminal trials in Canada “to send a message.” A criminal trial only occurs if there is a reasonable likelihood of conviction.

The courts start with the law as declared by Parliament. Here, Parliament has not said “any Canadian fighting in the same theatre as Canadian troops commits treason.”

Parliament has instead used a much narrower test. A person commits treason who:

Being engaged in fighting with a Canadian ally in the theatre is not enough; the person must have assisted an enemy at war with Canada, or armed forces which are engaged in hostilities with the Canadian Forces. That is an important restriction on the offence of treason, which historically has been used for political purposes. Instead, Parliament has given a clear and objective test, that cannot be met simply by saying “enemy” and “same theatre.” Absent evidence that brings Khadr within the language of the offence, quoted above, a Crown Prosecutor should be very wary of allowing a charge of treason to proceed.

A few comments.

First, Canada has signed the International Convention against Torture, and has implemented it by making it a criminal offence for a person in authority to torture a prisoner in their control. It is reasonable for the courts to conclude that Parliament would not want evidence obtained by torture by a foreign state to be admissable or used in a Canadian prosecution. This is a much more basic principle than simply the paperwork relating to a detention. If a person has been tortured (and there is a substantial body of evidence that lengthy sleep deprivation may amount to torture), then the evidence will likely not be admissible in a Canadian court, even if the detention was under the control of a foreign state.

Second, Parliament has provided that young persons charged with a criminal offence get stronger procedural protections than adults. Courts are required to implement that clear policy directive from Parliament. If a person under 18 is charged with high treason, then that person has procedural protections greater than those of an adult.

82

[QUOTE=Uzi]
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.
[/QUOTE]
Doesn’t matter what the motives of the group were; what matters is that they must have been engaged in some way against Canadian Forces. Absent evidence that they were engaged in attacking the Canadian Forces, it isn’t treason for a Canadian to be assisting.

83

[QUOTE=Uzi]
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.
[/QUOTE]

I have to disagree with you: treatment of the accused after capture and before trial is a factor that the courts must consider, particularly if the defence leads evidence to show that the detention authorities tortured the individual to get him to talk. At the least, if such torture is demonstrated, the confession gets excluded. At its highest, such mistreatment of the accused and denial of his basic rights can result in a stay of the charges. The Supreme Court has held that serious breaches of Charter rights can warrant a stay of proceedings.

And, as already mentioned, the Supreme Court of Canada has held that CSIS was complicit in the mistreatment of Khadr by the US authorities, and thereby did breach his Charter rights. That would be the starting point in a prosecution: the government has already been found to have breached the accused’s Charter rights, which the defence will use to try to get the charges stayed.

84

[QUOTE=Uzi]
The charge would be treason, not throwing a grenade. He was there and supporting the enemy.
[/quote]
The throwing of the grenade (alleged) would be the act alleged to be the act of hostility against the Canadian Forces (subject to all of my comments about the need for evidence that the group he was with was engaging the Canadian Forces). If the defence are able to raise a reasonable doubt that he threw a grenade, then the case for treason diminishes significantly, unless other acts against the Canadian Forces can be shown.

Sure - if shown. Is there in fact any evidence that he was bandaging individuals who were fighting the Canadian Forces? If not, this is simply a hypothetical, which cannot support a criminal charge.

I’m afraid this comment just deserves a reply of “Get real.”

85

The recreationally outraged can take comfort in knowing that if Mr. Khadr ever tries to go anywhere he’s not supposed to, Vincent Li might cut his head off.

(too soon?)

86

As I understand it, the American authorities take the position that if you are fighting without being part of an organised group, then you are not protected by the laws of war and thus are committing criminal offences by attacking US troops.

87

I think it’s stronger than “just a few crimes are tried by the civilian system regardless.” There are some that must be tried by the civil courts. There are others that may be tried by the civil courts.

As for the difference in sentence, that’s not a factor here, because the Criminal Code is a federal statute. If a soldier is tried for a Criminal Code offence, the sentence is the same whether the court is a civil or a military court.

88

I think they could make get a conviction if they wanted to. I think the reason they are not doing so is for other reasons than they couldn’t convict him. I think there are a great many Canadians who support him throwing grenades at Americans and want to poke the US in the eye on how poor Omar was treated.

Really? Is that your opinion or the actual ruling because I don’t see that in the statute? I think that being in theater is enough to say that they are at war with Canada and that Canadians were in jeopardy.

Again, your opinion? He was fighting our allies and at any point that ally could have had Canadians with them or been Canadians. He was actively engaged in preventing Canada from achieving its goals in the conflict and may well have caused additional Canadian deaths by preventing allied help while they were engaged fighting him. A war isn’t fought only one front.

No evidence need be presented other than that he was found supporting the enemy. Anything obtained after that fact wouldn’t be needed to make a case and isn’t relevant. Again it doesn’t matter if he was throwing grenades, shooting people in the head, applying bandages, or sweeping the floor. That he was found in that location at the time of battle should be enough.

Sounds good and when they convict him, I’m sure he will get time served.

89

Well, from my conversations with fellow former soldiers, there is a general feeling that someone should get a rope. I’ve heard no one say they will actually do so, though.

90

No, that is what a plumber and everyone else deserves not someone who deliberately puts their lives on the line for you. And I should say especially those sent to fight unwinnable wars due to a lack of political will

91

The Lawgiver Hath Spoken. Bring the condemned before us and execute him!

I’m sure there’s something missing here but I’m damned if I can figure out what.

92

I didn’t ask them to sign up and I was never in any danger that required the military. The Canadian military has never fought to protect Canadian territory. I’m sorry, you don’t get some extra reverence from me because you signed up to fight (and likely to get a free education/training ).

93

And another terrorist supporter comes out of the woodwork.

94

So if Khadr had been in theatre with Medicins Sans Frontiers, that’s treason?

95

Your government apparently thought otherwise. Nor was I just referring to the military. I had in mind occupations like firefighter and police as well.

There is no point in debating this as it leads me to believe that you’d have no qualms if the military was disbanded entirely. I don’t have enough time (or inclination) to fight such ignorance.

You’re welcome to your opinion no matter how wrong headed it is. But it intrigues me on your idea of free training and education. What training facility do you think would prepare a person to be an infantryman or for a similar combat trade other than what is currently offered by the military? What civilian occupations do you think require machine gun maintenance for employment such that the training is of any use outside the military? Did you go to university in Canada? How much did you pay for that education? Because a large portion of it is subsidized. What sacrifices have you made so that others can enjoy themselves at your expense? Probably none.

96

According to the statute he was if he was supporting our enemies. At least that is how it reads to me: Section 1 C

‘assists an enemy at war with Canada, or any armed forces against whom Canadian Forces are engaged in hostilities, whether or not a state of war exists between Canada and the country whose forces they are.’

It doesn’t look like a state of war even has to be declared which seems like an insurgent force would qualify. I guess the only thing here that would be a disqualifier is that it says ‘the country whose forces they are’. Are they fighting for a country, an ideology, or themselves and does it matter? What was the intention of those who drafted the law?

97

Nothing says “good faith debater” like referring to everyone who disagrees with you as a terrorist supporter.

98

That’s a weird conclusion. One could argue that the Canadian military has never fought to protect Canadian territory, but nonetheless argue Canada needs a military if ever it must do so, or in the case of such monumentally necessary military actions at the Second World War.

I was in the military too, and frankly the extent to which some people revere soldiers grosses me out. It’s a job, I volunteered to do it, and I got paid to do it. Yes, it can be very dangerous. So can many other jobs. Mining is as dangerous as being a soldier and I don’t see people posting Facebook statuses to the glory of miners, but I’d like to see someone explain how a modern industrial society could continue without mining.

All jobs are important. Soldiers are important, police officers are important, machinists are important, lawyers are important, truck drivers are important, electricians are important, nurses are important, people who know how to fix plastic injection molding machines are important, food safety inspectors are important. If they weren’t necessary and important they would not exist, which is why you don’t see buggy whip makers anymore. A grownup accepts that all jobs are part of what keeps our country running and realizes they’re all part of the collective effort that helps us all.

99

Just answering snark with snark there, buddy.:rolleyes:

100

My dad was in the military. I live in Ottawa and have interacted with military personnel my entire life. If you are unaware of the oppurtunities for training and education that you could have benefited fromt while in the military then I feel sorry for you but don’t blame me for throwing it away or expect me to “honour” some kid who signed up at 17.