Khadr and Zündel Revisited

I have argued that since the Charter of Rights and Freedoms is part of Canada's constitution, and Canadian laws, constitutional or otherwise, are only in effect within the Dominion of Canada, the Charter rights of Omar Khadr could not have been violated in either Afghanistan, where he was captured by the Americans, or the detention centre at the American naval base in Guantanamo Bay, Cuba, because neither of these places is within Canadian territory and subject to Canadian law. It has been objected, against that argument, that because Canadian officials were involved in the interrogation of Khadr at Gitmo, his rights were therefore violated because Canadian officials are still bound to act within the limits of the Canadian constitution outside Canadian territory.

Let us grant the validity of the premise. It is, after all, a valid one. If Canadian officials were not bound by the constitution outside of Canada then Canadian citizens upon whom the sitting government looks with displeasure could conceivably be in danger from agents of that government every time they set foot outside of the country. That having been said, the conclusion does not follow from the premise.

The reason for that is simple: if Canadian officials are bound to act within the limits of Canadian constitutional law outside Canadian territory then that is true of the constitution in its entirety, including Section 33 of the Charter. Section 33 authorises both Parliament and each provincial legislature to pass legislation that violates the fundamental freedoms listed in section 2 of the Charter and the basic legal rights enumerated in sections 7 through 14, provided that legislation is set to expire within five years of the date it comes into effect (section 15 can also be overridden by the terms of Section 33 but it contains neither fundamental freedoms nor basic rights). As it so happens, at the time that agents of CSIS and the Ministry of Foreign Affairs were participating in the interrogation of Khadr at Gitmo, just such a bill was in effect, the same antiterrorism/national security bill that was used to justify the detention of Ernst Zündel in a tiny isolation cell on Canadian soil for two years without charge or trial and his deportation to a country where he stood to serve prison time for controversial opinions expressed outside of that country's territory. If the law that allowed our government to do this to Zündel in Canada was constitutional by the terms of Section 33 then, quod erat demonstrandum, it also renders the involvement of CSIS and the Foreign Ministry in the Khadr interrogation, constitutional and legal.

As it happens, while I am satisfied with the conclusion of that reasoning, that the way our agents treated Khadr was constitutional and legal, I am not particularly thrilled with the part of the Charter that renders it valid. I reiterate my longstanding objection to Section 33 of the Charter. This clause is the reason that Brian Mulroney said that the Charter was not worth the paper it was printed on. Former Senator Eugene Forsey, who was one of our leading constitutional experts - his booklet explaining our form of government is still published by the government - was quoted by Charles Taylor as having called this clause "ghastly" and having said "if you are going to have a charter of rights - on balance I'm for it, but not without reservations - it had better be entrenched." (1) I have long maintained that Canadians were freer and their basic legal protections and rights were more secure prior to 1982 than after.

I am also not a fan of legislation passed in the wake of terrorist attacks that enhances government powers at the expense of civil liberties and legal rights. I can see the need for governments to detain and interrogate suspects quickly in the midst of an actual crisis situation but the kind of legislation the American government tried to pass in 1995, did actually pass in 2001, and which our government passed in 2001, all struck me as opportunistic power grabs. My long time readers will recall that prior to the last Dominion election I cited Bill C-51 as the reason why I could never vote Conservative again as long as Stephen Harper led the party.

All of that having been said, I stand by my judgement that it is the Zündel case and not the Khadr case that demonstrates the problem with both this kind of national security legislation and the constitutional loophole that allows for it. My critics may object that in so judging I show greater concern for a non-citizen (Zündel was only a landed immigrant) than a Canadian but in doing so they have elevated a technical distinction that happens to be irrelevant over the real differences between the two cases.

To preserve the corporate integrity of a state and the value of citizenship itself, legal citizenship must contain privileges not fully extended to non-citizens. Basic rights and freedoms, however, belong not to the category of the privileges of citizenship but rather that of the protections extended by the law of the land to all who fall under its jurisdiction, i.e., everyone who happens to be in the country at the time whether citizen nor not. Section 33 of the Charter certainly makes no distinction between citizen and non-citizen when it allows these rights and freedoms to be overridden.

The distinction between citizen and non-citizen is therefore irrelevant to the comparison being made. (2) The only thing further that needs to be said about it is that it ought to be of far greater importance to us that the laws of our country are justly enforced and their protections fully secured to everyone who falls under the jurisdiction of those laws than that privileges of our citizenship are respected abroad. It boggles the mind that anyone could find that ranking of priorities to be controversial.

As to the real differences between the Khadr and Zündel cases, note that the legislation that allowed the Chretien government to override basic rights and freedoms for the sake of national security was passed in order to combat the threat of terrorism of the type the United States had experienced in September of 2001. Omar Khadr actually was such a terrorist. He was fighting for al-Qaida, the same terrorist group to whom the 9/11 attack was attributed. He was at war with an American-led coalition in Afghanistan to which our government under Jean Chretien had committed Canadian troops and hence at war with our country but not as any sort of legitimate soldier for he fought out of uniform. He is exactly the sort of enemy Parliament had in mind when it passed Chretien's antiterrorism bill.

Zündel, on the other hand, was a political prisoner. He was not a terrorist and has never been a violent man. Indeed, when he was living in Canada he was himself the victim of terrorism - a bomb attack on his Toronto home incited by left-wing antiracists during his highly publicised trials. He posed no realistic threat to Canada's national security and the only motivation for the treatment he received was the desire to punish him for saying unpopular and controversial things and to silence him.

Zündel's case, therefore, was clearly an abuse of the legislation that gave the government the temporary power to override our basic rights and freedoms to combat terrorism whereas Khadr's case is an example of the real threat that inspired the legislation to begin with. It is Zündel, not Khadr, to whom we must point to demonstrate what is wrong with that kind of legislation and the section of the Charter that allows for it.

The basic rights and freedoms of Canadians as subjects of the Crown were protected by Common Law, grounded in centuries of prescription, long before Pierre Trudeau passed the Charter, Section 33 of which, rendered them less protected and secure than before. National security legislation, while understandable in a crisis, creates too much potential for abuse, as demonstrated by the Zündel case. The best way to combat terrorism, therefore, is not to fight wars abroad while undermining our own rights and freedoms to create a surveillance state at home. Rather, it is to leave other people alone in their own countries, and tighten up our immigration policies and citizenship laws so that terrorists from other countries like the Khadr family cannot get in, much less have anchor babies here who they then raise elsewhere to be enemies of our country and of Western Civilization of which we are part.

(1) Charles Taylor, Radical Tories: The Conservative Tradition In Canada, (Toronto: House of Anansi Press, 1982), p. 122)

(2) To the objection that citizenship v. non-citizenship matters when it comes to the question of deportation and denial of entrance, I answer that this is true but still irrelevant to the present comparison for the following reasons: a) While it is true that a citizen cannot be deported but a non-citizen can it is against Canadian policy to deport people to countries where they will become political prisoners, as was the case with Zündel's deportation to Germany; b) While it is true that Canadian citizens cannot be denied entry to the country except under extraordinary circumstances this does not mean that the government is in violation of a Canadian's rights whenever it places an obstacle in the way of his return - otherwise, the taxpayers would be liable every time a customs officer keeps a citizen waiting for hours while he does a thorough investigation - and at any rate, Khadr's having been convicted of murder, terrorism, and war crimes constitutes the extraordinary circumstances that justify the government's not wanting to take him back; c) Chretien's anti-terrorism bill may have expired by the time the government tried to block his repatriation but, since it was still in effect during the time in which our agents participated in his interrogation, their actions were therefore legal and constitutional under Section 33 of the Charter and the role the interrogation played in securing the conviction referred to in the previous point cannot invalidate the government's raising that conviction as an objection to his repatriation.