The Book

 

 

 

 

This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

Please also visit my archive of "secret law" in the security area.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Most Recent Blog Postings
Thursday
Jan172008

Call to Canadian Government to Raise Child Soldier Issue in Khadr Proceedings at Guantanamo

In an open letter to Foreign Affairs Minister Maxime Bernier released today, forty-seven law professors from around Canada called on the government to intervene in the case of Omar Khadr and raise issues of international law concerning child soldiers. This call comes as these and other Canadian law professors and a score of Canadian parliamentarians prepare to file their own intervention Friday on the child soldier issue in the trial of Omar Khadr at Guantanamo Bay. This letter is available here.

Wednesday
Jan092008

Trying Omar Khadr in Canada: New report on Canada's Guantanamo Bay detainee

A team of students in the uOttawa Faculty of Law Foreign Policy Practicum has submitted a report to the Standing Senate Committee on Human Rights summarizing the publicly available facts in the Omar Khadr case and contesting recent Canadian government claims that Khadr could not be tried in Canada for his alleged acts.  This report, Repatriation of Omar Khadr to be Tried under Canadian Law: An Overview of the Case Against Omar Khadr and the Prospect of Canadian Criminal Jurisdiction, is linked to this blog.

 

Omar Khadr is the only Canadian - and indeed the only Western - citizen held by the United States at Guantanamo Bay naval base. He is also one of the first persons against whom criminal proceedings have been brought under the controversial U.S. military commissions system. (Australian David Hicks was technically the first, though he reached a plea bargain agreement and thereby avoided the trial procedure). Omar was captured by U.S. forces in Afghanistan after a fire-fight in which he is said to have participated. He was 15 at the time.

While other U.S. allies have demanded and secured the release of their nationals from Guantanamo, often subsequently conducting their own criminal investigations or proceedings against former detainees, the Government of Canada’s efforts on Khadr’s behalf have been desultory in comparison. In reaction to calls for the repatriation of Omar from human rights and other groups, the government has responded that the U.S. military commission process should take its course. More recently the government has suggested that, if repatriated, Khadr could not be charged for the offences he is said to have committed prior and during the Afghan firefight.

The uOttawa Foreign Policy Practicum report suggests that he could be tried in Canada; that is, in a proceeding before a fair and impartial tribunal applying internationally-accepted fair trial rules and taking proper account of his age at the time of the alleged offences (a consideration that has not as of yet been deemed relevant in the US military commission proceeding).  The report calls on the Canadian government to seek Khadr's repatriation to Canada.

Thursday
Dec132007

Uncertainty in the Canada Evidence Act

Cross-referencing: National Security Law (NSL), Ch. 10, p. 405 et seq.; p.417 (note 174 and accompanying text).

The Federal Court of Appeal has now issued the second of two decisions stemming from the Canada Evidence Act proceedings at issue in the Khawaja anti-terrorism prosecution.  In the first decision, Canada v. Khawaja, 2007 FCA 342, the Court of Appeal upheld the approach applied by the Federal Court (and described at NSL pages 406-07) in balancing the national security interest in secrecy against the public interest in disclosure (although it quibbled with how this test had been applied to at least some of the actual secret material in question).

In the second decision, Khawaja v. Canada, 2007 FCA 388, the Federal Court of Appeal reviewed Justice Lutfy's conclusions in the court below on the constitutionality of the in camera, ex parte regime created by the Canada Evidence Act in section 38.11.  (See discussion at PIL, Ch. 10, p.410 et seq.) The Federal Court of Appeal concluded that section 7 was not infringed by these procedures, as "the features of subsection 38.11(2) do not fall below the level of fairness required in section 7 of the Charter".  Ibid at para. 31.  (All the concurring opinions came to the same conclusion, along the way raising some surprising doubts about whether section 7 was triggered at all).  The court said little more on this issue. 

In comparison, Justice Lutfy, in the court below, identified as one of the safeguards that rendered s.38.11 compliant with section 7 the authority of the judge to appoint an amicus curiae.  This person could "be provided access to the secret information to read, hear, challenge and respond to the ex parte representations made on behalf of the government" -- in other words, they would act as a sort of proxy for the excluded party.   Khawaja v. Canada, 2007 FC 463 at para. 50.  From this, it follows that use of a "special advocate" (or to make less sweeping my rendition of this case in the book, at least the possibility of such a use) is constitutionally required to meet the section 7 requirement.  (PIL Ch. 10, p.417).

Given the Federal Court of Appeal's silence on this issue -- and its simple endorsement of section 38.11 as it stands -- this extrapolation is no longer sustainable.  It remains to be seen what will happen if (most likely, when) this matter is appealed to the Supreme Court.