07/06/2012 07:36 EDT | Updated 09/05/2012 05:12 EDT

Omar Khadr Has the Right to Return to a Canadian Prison

The U.S. has now agreed to transfer Omar Khadr to a Canadian prison to serve the remainder of his sentence. By law, the Canadian government should not obstruct his transfer to a Canadian prison. Here is why we believe it is time to repatriate Omar Khadr ASAP.

Getty Images

Many Canadians have conflicting views about Omar Khadr. Beginning with his father's reported connections to Al Qaeda, the Khadr name has become deeply unpopular.

In Canada however, we apply the rule of law. This is why everyone, even the reviled among us, is afforded due process, fair trial, and the full protections of the Canadian Charter of Rights and Freedoms. A free and democratic society demands due process.

Khadr has been held at Guantanamo Bay for almost 10 years. The U.S. has now agreed to transfer him to a Canadian prison to serve the remainder of his sentence. For the six reasons below, we believe it is time to repatriate Omar Khadr:

First, Khadr is a Canadian citizen. Section 6 of the Charter permits Canadians to enter and remain in Canada. The Federal Court of Appeal noted in 2011, in another U.S.-Canada prison transfer case, that "the right of a Canadian citizen to enter and remain in Canada is one of the most fundamental rights of Canadian citizenship," and when section 6 of the Charter is engaged, there is no room for discretion. In Khadr's case, the U.S. is waiting for Canada to consent to his prison transfer. By law, the Canadian government should not obstruct his transfer to a Canadian prison.

Second, Khadr's alleged offences occurred when he was a child. He was born on September 19, 1986 in Toronto. In July 2002, when he was 15 years old, Khadr was badly wounded, captured by U.S. forces and accused of throwing a grenade that tragically killed U.S. Sgt. First Class Christopher Speer.

International law has specific rules regarding the treatment of children conscripted into hostilities and armed conflict. Both Canada and the U.S. have ratified the Optional Protocol to the UN Convention on the Rights of the Child, which sets 18 as the minimum age for direct participation in hostilities. Conscription of child soldiers is a blight upon humanity -- one need only recall the horrific images in news reports of conscripted youths armed with machetes and/or AK47s, wreaking havoc in the bloody armed conflicts around the world. International law recognizes the goals for child soldiers are physical and psychological rehabilitation, and social reintegration into functioning societies. Prosecuting a child for crimes allegedly committed as a child soldier, is contrary to the goals of protection, rehabilitation, and reintegration.

Third, Khadr has been held at Guantanamo Bay since 2002. When taken there he was severely wounded, and subject to interrogation tactics which included the "frequent flyer program" -- a form of sleep deprivation, condemned by the UN Special Rapporteur Against Torture -- and subject to threats. In 2004 and 2006, the US Supreme Court found that the Guantanamo Bay regime at that time, violated fundamental human rights protected in international law.

Fourth, in January 2010, the Supreme Court of Canada found that Khadr's Charter rights were violated when he was interrogated at Guantanamo Bay in 2002 by Canadian officials. These officials knew he was a minor; wounded; subjected to "improper treatment"; with no lawyer; with no family support; and was imprisoned contrary to international legal standards applicable to children under the then-illegal Guantanamo regime. The Supreme Court held that the Canadian government was legally bound to provide Khadr with a remedy for violation of his Charter rights. While the court acknowledged that "repatriation" might be a suitable remedy, it deferred to the executive to determine and provide the most suitable remedy. To this day, the Federal Government has yet to provide Khadr with a remedy.

Fifth, in October 2010, when it became evident that Canada was not seeking repatriation of Khadr to Canada to stand trial, and that his U.S. trial would not take place in U.S. Federal Courts with full due process -- but rather would take place before a U.S. Military Commission, facing a forty-year sentence -- Khadr pleaded guilty. In exchange for his guilty plea, Khadr was sentenced to eight years imprisonment, one of which he would have to serve at Guantanamo Bay, after which time he would be eligible for an international prison transfer.

Sixth, Khadr completed that one-year imprisonment in October 2011, and became eligible for transfer to Canada. Apparently the U.S. has agreed to the transfer, and is waiting for Canada to make the next move.

It is time to let Omar Khadr return to Canada to serve the remainder of his prison sentence. International law recognizes that child soldiers are often forced to commit atrocious crimes, recognizes they are victims of the adults who force them into armed conflict, and recognizes they must receive legal protections. Omar Khadr did not receive the protections international law provides to children in armed conflict. Nor did Omar Khadr receive the protections of the Canadian Charter when he was interrogated by Canadian officials at Guantanamo Bay. It is time now to allow Khadr the right to return to serve out his imprisonment in his own country of Canada, and to begin the process of rehabilitation.