Cheryl Milne is the chair of the Canadian Coalition for the Rights of Children and the executive director of the David Asper Centre for Constitutional Rights at the University of Toronto.
The Alberta Court of Appeal has taken a significant step toward acknowledging what the Canadian government has steadfastly refused to accept – that Omar Khadr was a young person who was entitled to special protections for his rights under Canadian and international law from the beginning. It is disappointing that the Canadian government continues to refuse to extend those protections now that he is in Canada. The Charter of Rights and Freedoms and international treaties such as the UN Convention on the Rights of the Child and the Optional Protocol for Children in Armed Conflict commit Canada to treat young people in accordance with their best interests and with an aim to rehabilitation and reintegration in society. This is how we would have treated a child soldier in any other circumstance.
The Alberta Court of Appeal did not use the Charter to set aside Canadian law governing the transfer of Canadians incarcerated abroad to serve their sentences in Canada. All it does is interpret the existing law, and apply it to Omar Khadr. It does not address the dubious legal authority for Mr. Khadr's eight-year sentence imposed by a U.S. military court. It does not address the legitimacy of that proceeding or the sentence imposed, although these issues are now being litigated in the United States. The Court does unanimously find that Canadian law requires that his sentence should be treated like a youth sentence because it falls below the maximum sentence for a young offender charged with comparable crimes in Canada. Omar Khadr was sentenced to eight years in total by the Military Commission for all his offences. The maximum sentence for a young offender in Canadian law is ten years. Therefore, Mr. Khadr's sentence is a youth sentence. This finding requires that he serve out that sentence in a provincial correctional facility rather than the federal penitentiary where the Canadian government has held him since his return to Canada.
The decision itself is based upon detailed statutory interpretation of the various pieces of legislation that govern the international transfer of prisoners from foreign countries to Canada to serve out the remainder of their sentences. But most importantly the decision is founded upon the constitutional principle that we treat young people differently in our criminal system because we presume that they have a reduced moral blameworthiness for acts committed while they are young. That Omar Khadr has been consistently characterized as war criminal deserving of the most serious of penalties is contradicted by Canada's international and constitutional obligations, that require that we treat him like a child soldier and a young person in need of rehabilitation, as well as by the sentence he actually received by the U.S. military court – an eight-year global sentence for first-degree murder, attempted murder, terrorist activities and spying for the enemy to which he pleaded guilty in a plea bargain designed to facilitate his ultimate return to Canada.
This decision does not address the injustices that were inherent in the original proceedings, such as the refusal to treat Mr. Khadr as a young person with special protections, the failure to treat him as a child soldier in accordance with international law, the questionable legal authority of the military court to try him in the first place, not to mention the alleged frailty of the evidentiary record against him, which he might never get the opportunity to properly challenge. However, it is a blow to the Harper government's intransigence despite successive Supreme Court decisions that have held the government in the wrong in terms of their treatment of or failure to advocate for Mr. Khadr.
Child rights advocates are appalled by the treatment that Mr. Khadr received by the United States, and Canada's complicity in despatching Canadian officials' to interrogate him under conditions of torture and then obstructing his repatriation. When Canada was required to present its record of implementation of the UN Convention on the Rights of the Child to that treaty oversight body in 2012, the question of how the government was failing to advocate for Mr. Khadr was high on its list of questions for the Canadian government. Canada's non-response effectively communicated the message that it did not wish or intend to answer for its actions.
Now that Mr. Khadr is in Canada, and subject to and protected by Canadian law, perhaps he will begin to see some justice. Acknowledging that his sentence is the equivalent of a youth sentence under Canadian law is a promising first step.