Left out in the cold

Almost a decade after being arrested, Omar Khadr has finally been sentenced. He received 40 years for the murder of an American soldier in Afghanistan, although a plea bargain struck in private will allow him to apply to transfer back to Canada in one year and limits his actual sentence to eight years.

It’s about time. More than seven years of legal wrangling, delays and downtime in Guantanamo Bay is more than seven years too many. And in all that time, what help has Khadr received from his own government? Basically, none. It’s a precedent that should worry Canadians everywhere.

Allow me to digress for a moment. Many people in Canada take their citizenship for granted, especially if it was granted by virtue of their being born on Canadian soil, to Canadian parents. Understandable, of course — I confess that I am rarely aware of my citizenship in any sort of active way.

It’s a misleading way of thinking, though. Citizenship is a pretty serious concept, and debates over nationality law are quite common in our legislature. The process that people go through to become naturalized Canadians is perhaps the most tangible manifestation of the social contract that we have all theoretically entered into with the Canadian state, either from birth or by oath.

We agree to place certain limits on our behaviour, and the government will provide us with the rights and freedoms guaranteed us under our constitution. I realize that’s an oversimplification, but it’s essentially what happens.

That’s why Prime Minster Steven Harper’s refusal to do anything that remotely resembles helping Khadr is so worrisome. The government has been chastised twice by the Federal Court of Appeal, and twice by the Supreme Court, for acting improperly in relation to this case. Although the Supreme Court wisely avoided ordering Harper to request Khadr’s extradition, they very clearly stated that his rights as a Canadian had been violated.

On all of the above occasions, Harper responded by doing nothing except complain that it is not the judiciary’s role to determine government policy. And, of course, now that Khadr has pleaded guilty, some will undoubtedly claim vindication for the prime minister.

But these arguments miss the point. The issue has never been Khadr’s guilt — that is a totally separate argument — nor the courts dictating policy. They were pointing out that our constitution dictates policy. And according to that binding and omnipresent document, it is our government’s responsibility to provide, or at least attempt to provide, assistance to Canadian citizens imprisoned overseas.

Now, the exact form that assistance must take is admittedly unclear, and there is no guarantee of success. I suspect that, had Canada requested the return of Khadr, Washington’s response would have been to talk to the hand, or something else suitably glib.

For a variety of reasons, the Americans viewed Khadr’s case as something that had to be dealt with by them, internally. But that view — a distinctly political one, whether you agree with it or not — for some reason found its way into the minds of the Tory cabinet, and became Canada’s official line too.

This is wrong for two reasons above all. First, we should not let the political agenda of another country dictate our policy. While it might be argued that Harper and company really believe in their position, all signs point to them believing more in following the lead of what was, until a couple of years ago, a kindred administration in the White House.

Secondly, the right to assistance by our government is not a political issue. It is, quite simply, a right. Just as our treatment of murderers and thieves is determined by our constitution and criminal code, and not our subjective feelings on their individual cases, so too should the government’s assistance to citizens overseas be dictated by our law, not a political agenda. Like a fair trial, it is something that legally must be given to us, however distasteful that prospect may be to some.

Of course, the issue is somewhat moot now, at least as far as Omar Khadr is concerned. He gets another year in Cuba and then will in all likelihood be returned to Canada. Even if he receives early parole, he will have spent more than a third of his life languishing in prison, largely abandoned by the only state that might have provided any help at all.

I can’t imagine that he harbours much goodwill towards our country, or at least our government, at this point, and if that is the case, I don’t blame him. Whether we realize it or not, we all live with the expectation that the government will come to bat for us in a pinch. In Khadr’s case, no one was even on deck.

Greg Sacks is a first year law student at Robson Hall who sometimes wonders just how Mavis Beacon got so good at typing.