High Treason and Second-Class Citizenship

In today’s Globe & Mail, Steven Chase reports “Tory convention to consider ‘high treason’ punishment proposal“:

“The “High Treason” proposal, if adopted, would make it party policy to support automatically voiding the citizenship of Canadians caught fighting soldiers of this country or allied nations.

It would also back trying such a Canadian for “high treason” under the Criminal Code, a charge that carries a maximum penalty of life imprisonment.

In theory, such a policy – had it been enacted in law years ago – might have resulted in Canadian Omar Khadr losing his citizenship after he was caught fighting U.S. soldiers in Afghanistan.”

So what are the rights and responsibilities of Canadian citizenship exactly?

This, according to the Citizenship and Immigration Canada website, Study Guide-Discover Canada:

Rights and Responsibilities of Citizenship

Canadian citizens have rights and responsibilities. These come to us from our history, are secured by Canadian law, and reflect our shared traditions, identity, and values.

Canadian law has several sources, including laws passed by Parliament and the provincial legislatures, English common law, the civil code of France, and the unwritten constitution that we have inherited from Great Britain.

Together, these secure for Canadians an 800-year old tradition of ordered liberty, which dates back to the signing of Magna Carta in 1215 in England (also known as the Great Charter of Freedoms), including:

Freedom of conscience and religion;

Freedom of thought, belief, opinion and expression, including freedom of speech and of the press;

Freedom of peaceful assembly; and

Freedom of association.

Habeas corpus, the right to challenge unlawful detention by the state, comes from English common law. [emphasis added]

The Citizenship Study Guide continues,

The Constitution of Canada was amended in 1982 to entrench the Canadian Charter of Rights and Freedoms, which begins with the words, “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.” This phrase underlines the importance of religious traditions to Canadian society and the dignity and worth of the human person.

The Charter attempts to summarize fundamental freedoms while also setting out additional rights. The most important of these include:

Mobility Rights — Canadians can live and work anywhere they choose in Canada, enter and leave the country freely, and apply for a passport.

Aboriginal Peoples’ Rights — The rights guaranteed in the Charter will not adversely affect any treaty or other rights or freedoms of Aboriginal peoples.

Official Language Rights and Minority Language Educational Rights — French and English have equal status in Parliament and throughout the government.

Multiculturalism — A fundamental characteristic of the Canadian heritage and identity. Canadians celebrate the gift of one another’s presence and work hard to respect pluralism and live in harmony. [emphasis added]

Thus, the right of citizenship is founded on the Magna Carta, the Great Charter of English liberty and English common law, which includes the right of habeas corpus, enshrined in  the Constitution Act 1982, under Section 10 of the Charter of Rights and Freedoms, which  states that:

10. Everyone has the right on arrest or detention

(a) to be infomed promptly of the reason therefor;(b) to retain and instruct counsel without delay and to be infomed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

I wrote previously about Omar Khadr’s guilty plea, noting that:

After the jury of Khadr’s peers (i.e. seven military officers on the jury)  issue a sentence, US military judge Army Colonel Patrick Parrish will consider the plea agreement and likely will accept the lesser sentence of the two. Who wants to bet that the military jury will recommend more than 8 years? Recall that it was Judge Parrish that previously ruled that Khadr’s confessions were admissible at trial, despite the Supreme Court of Canada’s  contrary views).

In Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, Justice Wilson held that the word “everyone” in section 7 of the Canadian Charter of Rights and Freedoms “includes every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law” (at 35). More recently, in R. v. Hape, [2007] 2 S.CR. 292, the Supreme Court of Canada  ruled against applying the Charter outside of Canada, with the narrow exception that  “deference ends where clear violations of international law and fundamental human rights begin”. (at para. 52).

This so-called “new” Conservative party policy platform is nothing of the sort. It merely reaffirms Stephen Harper’s “second class citizen” bias and NIMBY approach to international law. All it represents is the Conservative government’s fear mongering and reinforcement of a “tough on crime” agenda. Under s. 42 of the Criminal Code, high treason already provides for assisting an enemy at war with Canada and carries a maximum penalty of life imprisonment.

Based upon the Canadian government’s disdain for complying with its international law obligations, stripping someone of their citizenship without protecting “everyone’s” rights as Canadian citizens abroad is not only hypocritical; it is anathema to the Rule of Law.

Yes,  if you join al-Qaeda or the Taliban and you’re a Canadian citizen, then you should be prosecuted by and subject to Canadian law.

What, as a Canadian citizen, you should not be subject to is extraordinary rendition and torture like Maher Arar or Omar Khadr’s elder brother, Abdullah Khadr. How is Omar Khadr’s case as a Canadian citizen any different, other than he was captured by U.S. forces and declared an “enemy combatant” and shipped off to Guantanamo Bay?

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