Category: Canada

As a writer I’m a little conflicted about the state censoring free speech.  Freedom requires the ability to speak freely, and in a perfect world everyone should be free to discuss contentious issues.  But words aren’t neutral, and sometimes words are used break the law.  Which is why even nations that protect freedom of speech use law to limit it when necessary.

Defamation and Libel break the law using only words. So does cyber bullying and criminal harassment. False advertising and fraud are crimes that can be committed with words.  And threatening someone is Assault under the Criminal Code of Canada, as is Sedition.  All of these things (and undoubtedly more that I’ve missed) are limitations on free speech.

In addition to these word based crimes that limit our freedom of speech, Canada also has laws against hate speech and hate crime.  Since the election of American President Donald Trump, acts of hatred have been on the rise, not just there, but throughout the world.  And certainly here in Canada.  American society seems especially prone to allowing words and actions used to incite or assault, and even privacy invasion to be protected as “free speech.”

“A hate crime is one in which hate is the motive and can involve intimidation, harassment, physical force or threat of physical force against a person, a group or a property.”

—CBC: What is a Hate Crime?

Although there is some variety across Canadian jurisdictions,

“A hate crime is a criminal offence committed against a person or property that is based solely upon the victim’s race, religion, nationality, ethnic origin, sexual orientation, gender or disability.”

—Metropolitan Toronto Police Force,
2.3 Hate/Bias Crime Definitions used in Canada: Disproportionate Harm: Hate Crime in Canada

Even if there is no other Criminal Code violation, a hate crimes can be charged on their own.   But when elements of any crime has aspects of hate crime, either separate additional charges can be laid against the perpetrator, or the punishment can be enhanced by the gravity of the crime.

The Criminal Code of Canada’s Purpose and Principles of Sentencing says:

Fundamental principle

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

• R.S., 1985, c. 27 (1st Supp.), s. 156;
• 1995, c. 22, s. 6.

Marginal note:Other sentencing principles

718.2 A court that imposes a sentence shall also take into consideration the following principles:

• (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

  • (i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,

  • ---

    (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

I’m not a lawyer, so I can’t say exactly what charges should be laid against the young man who threw the heavy metal trailer hitch at a couple of random Indigenous women walking down a Thunder Bay street.

From what I’ve read, neither victim or perpetrators knew each other, and yet the action was deliberate.

But the heavy piece of metal didn’t fly out the car window accidentally through negligence.

A young man leaned out the window holding a heavy metal object that might weigh as much as 50 pounds or more— a proverbial blunt instrument.  To put this in perspective: the heaviest legal weight for a bowling ball is 16 pounds.  It wasn’t a small thing to hold, much less throw.

Certainly the other three people in the car with him had to be aware of what he was doing.  Two of them turned themselves in to police the next day, but the perpetrator and the driver of the car did not.

The only explanation for this action lay in the words 18 year old Brayden Bushby shouted after he threw the thing that knocked down and fatally injured Barbara Kentner.

“Oh, I got one“

These words indicate this was no random act of violence, it was clearly deliberate.  It doesn’t matter whether “one” referred to the gender or race of his victim.  It does matter that these words make clear he wasn’t attacking a specific person, he was targeting women or Indigenous women.  Which makes it a hate crime.

Why do we have hate crime laws?

“The impact of such crimes is far reaching, extending beyond the physical and emotional trauma to the victim, to encompass other members of the groups and broader community. Such crimes can heighten the isolation and vulnerability of the victim’s group and cause stress for all members of the community. If unchecked, these crimes can result in an escalation in social tensions between different groups that can destroy communities, thereby furthering the aims and objectives of those in our society who promote hatred and intolerance.”

— Policing Standards of Ontario

In recent months the Ontario city of Thunder Bay has been prominent in news stories in connection with racism.

In June, Statistics Canada reported that most of the police-reported hate incidents in Thunder Bay targeted Indigenous people, accounting for 29 per cent of all anti-Aboriginal hate crimes across Canada in 2015.

“Young people have told me repeatedly of walking home and having things flung at them out of cars,” Thunder Bay MP and Liberal cabinet minister Patty Hajdu said following the release of the Statistics Canada report.

—National Post: Escalating racism toward Indigenous people ‘a real problem’ in Thunder Bay: grand chief

The City of Thunder Bay’s Anti-Racism & Respect Advisory Committee has put together tools for reporting racism.  The situation has become so dire the City of Thunder Bay has joined with the Fort William First Nation and Nishnawbe Aski Nation in hopes of addressing its crisis of racism.

And yet to date, the only criminal charged brought against Brayden Bushby— the man who deliberately threw the trailer hitch that led to Barbara Kentner’s death— is aggravated assault because “investigators did not feel there was enough evidence to call the crime hate-motivated.”

I’m no lawyer, but I simply cannot comprehend how a stranger who targeted Indigenous women and killed one in a drive-by could be anything but a hate crime.   Several reports mention charges might be upgraded based on the Coroner’s Report (whenever it comes out) but so far nothing.

We all must work together to acknowledge that racism exists. We must combat and report racism. We must take this very seriously. This has been going on for far too long. This is our reality as many Indigenous Peoples, especially our women, have come to me with their stories. It’s very disturbing and frightening. There is an escalation of violence in this city, and we must not minimize these horrible situations.

—Nishnawbe Aski Nation (NAN) Deputy Grand Chief Anna Betty Achneepineskum

Thunder Bay’s Mayor expressed his condolences to the family, but has since been charged with extortion in an unrelated matter, and Thunder Bay police chief’s charges tied to issue with the city’s mayor.  At the same time the Office of the Independent Police Review Directorate, began a review of the Thunder Bay Police last November in response to “allegations of “systemic racism” when dealing with all cases of murdered and missing indigenous people.“

Clearly the City of Thunder Bay is in crisis, but nonetheless the justice system can not be allowed to forget the 34 year old mother who lost her life, who spent months dying in agony,  because a man didn’t recognize she was a human being.  He didn’t think there would be consequences for his grotesque act.

But a life was taken.  Barbara Kentner’s life was taken.

Woman. Sister. Aunt. Cousin. Mother.

This life can’t ever be returned to the family and community that mourns the senseless loss.

We as a society must say “NO” to hate speech and hate crime.  The best way to do this is by teaching our children not to hate, but apparently not enough of us are.  Education and outreach programs can help, but until then, the way to do that is through the justice system.   It seems Thunder Bay’s Crown Prosecutor needs to be reminded justice demands this perpetrator must answer for taking a life.  Not for vengeance, but because every life has value.  And hate crimes have real consequences.

Which is why I’m asking you to join me in signing this petition.  Please sign and share.

Sign The Petition to the Crown Prosecutor Thunder Bay:
Ensure Barbara Kentner’s Justice: Brayden Bushby Must Be Charged With More Serious Charges

Although the Canadian Government has apologized and made a settlement with Onar Khadr, you can tell Parliament that you support this decision by signing this Parliamentary e-Petition e-934

When I was a kid at Conestoga Bible Camp, we did an exercise where we were supposed to hold our arms in the air above our heads the way Moses is said to have done in order to part the Red Sea. The idea was that he had to keep his arms in the air to keep the sea parted long enough for all the people to get across. So how about you try it now: how long can you hold your arms in the air above your head before it starts to get uncomfortable. Before it starts to get painful.  Now imagine how it would feel you had 2 through & through bullet holes in your chest.

Some people are saying Omar Khadr wasn’t tortured.  The 15 year old Canadian boy was dug out of the rubble with two gaping exit wounds in his chest.  He wasn’t expected to survive.  When he was still a long way from recovery in the Bagram prison camp, he was hung from his wrists.  For hours.  Sounds like torture to me.

Canadian Politics

Canada is nominally a Representative Democracy.  Canadian voters elect representatives who are supposed to represent our interests– to govern in our names– in the House of Commons, the Canadian lower house of our Parliament.  Unfortunately, because Members of Parliament (MPs) are elected with a winner-take-all electoral system, our government is adversarial.  So instead of fostering co-operation, and creating policy in the best interests of all Canadians, we have been seeing increasing polarization, not just of political parties, but of citizens.  Such a system creates a class system by dividing Canadians into those who have representation and those who have not.  One side is the winner with all the power and everyone else are losers.

After 40 years of absolute control in Alberta, after the recent election of an NDP government, there were death threats against the new premier from citizens who believed they were absolutely entitled to be the winners. All the time.  They were the ruling class.

With the stakes so high, it has become increasingly necessary for the different parties to differentiate themselves.  As a result, we’ve seen racist rhetoric grow as Canada’s traditional alternating governing parties square off.

Some Canadians worry we will end up with our own version of President Trump.  And other Canadians welcome the idea.

For myself, I believe in democracy. Even those whose opinions I find odious deserve fair representation in Parliament.

If a majority of Canadians want a Prime Minster Trump, if a real majority of Canadian voters actually vote for a party led by a leader like him, then that is the Prime Minister we ought to have.

But here’s the thing: a majority of eligible American voters did’n’t elect President Trump. Something like half of them didn’t even vote, so Mr Trump was elected by twentysomething percent of eligible voters.  Just as here in Canada a mere twentysomething percent of eligible voters gave us 39% “majority” governments twice in a row.  When more people don’t vote than vote for the winner, it is not a particularly strong mandate on which to give a party 100% of the power.

Those Canadians with whom I disagree are just as entitled to representation as I am.  If Canada is to be a real democracy, they should not be entitled to more power than they’ve earned in votes.  All Canadians need a real chance for fair representation, and for that we need Electoral Reform.

The tragedy of Omar Khadr is just the latest divisive issue to push the polarization of the citizens of Canada to new heights.  Like electoral reform, this should not be a partisan issue at all.  It doesn’t even matter what Omar Khadr did or didn’t do.

Mr. Trudeau has dictatorially decreed he will not adopt a fairer electoral system after all, so Canada is certainly heading down this path to polarization.  We can look forward to more of this civil unrest not less.

The Canadian Government violated Khadr’s rights.

Let me say it again: The Canadian Government violated his rights.  The rights guaranteed to him and every Canadian under the Canadian Charter of Rights and Freedoms.  Not because I say so: it is NOT a matter of opinion.  It is a fact.

Three Administrations of the Canadian Government—those of Prime Minister Jean Chrétien, Prime Minister Paul Martin, and Prime Minister Stephen Harper— all deliberately failed to protect the rights of a Canadian child.  We know this because the highest court in the land has studied the situation and the law and determined this to be the case.  You don’t have to believe me; you can read the entire ruling for yourself.

“This Court declares that through the conduct of Canadian officials in the course of interrogations in 2003-2004, as established on the evidence before us, Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive  him of his  right to liberty and security of the person guaranteed by s. 7  of the Charter, contrary to the principles of fundamental justice.”
— Canada (Prime Minister) v. Khadr ~ Supreme Court of Canada Judgement 2010 SCC 3

This is not up for debate.

So when Omar Khadr brought a $20 million civil suit against Canada for the terrible harm our government inflicted on him, with the highest court of the land vindicating his claim that his rights were infringed, there is no way he would lose.  As the Canadian Government has already spent something in the neighborhood of $5 million dollars fighting Mr. Khadr, the Trudeau Government negotiated a settlement with the young man for about half.  They could have thrown good money after bad, and ended up paying a settlement of an additional $20 million plus costs. Craig Forcese (an actual law expert) suggests the costs could be substantially higher (in reputation as well as money) than anything I’ve surmised.

And it isn’t unheard of for a judge to award a settlement greater than the law suit asked for.  That is what I would do if I was the judge.

This is anything but a partisan issue.  The initial breach of the rights of the child soldier Omar Khadr was perpetrated by Liberal Government, and because his detention was ongoing through the subsequent Conservative Government, they shared the blame. Governments of both parties messed up on the Khadr file.

But the Conservative Party is looking to make points by (a) pretending this settlement is unjust (by pretending Mr. Harper’s government wasn’t up to its ears in culpability), and (b) get Canada’s military, vets and their families against it (obscuring the fact the real culprit for them is the government”s failure to adequately compensate them, particularly when wounded.)

Since both parties previous governments are to blame, a rational person might imagine Liberals and Conservatives would both want this to be done and over with.  We should all be congratulating the Canadian Government on making a good deal, right?

Well, no.  Not in the winner-take-all land of Canada.

Here’s the thing: Canadians are guaranteed human rights as written in the Canadian Charter of Rights and Freedoms.

All Canadians.  Conservatives and Liberals.  The way it works is this: it doesn’t matter which party forms the government, every citizen enjoys these protections.  It isn’t optional.  This is universal: all Canadians are protected by the Charter.  All the time.  The end.

Certainly the Supreme Court of Canada laid the blame at the door of both Liberal and Conservative governments.  So it couldn’t possibly be partisan.

Well.  It shouldn’t be.  Except, in our crazy winner-take-all Canada, some hyperpartisans act as though the Canadian Charter of Rights and Freedoms is a Liberal thing.

The Liberals are always patting themselves on the back because they repatriated the Constitution so as to enshrine the Charter.  Clearly they are the good guys, right?

But because such Liberal proprietary boasts are all smug and condescending, in our winner-take-all world, Conservatives sneer at the Charter as though it was something odious that the Conservatives would never have done.

Except the truth is that before the Canadian Constitution was repatriated, the Conservative Government of Canada led by Prime Minister John Diefenbaker created and implemented the Charter’s forerunner, the Canadian Bill of Rights.  

This is the part of the Charter that was breached:

Legal Rights

Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

In the Bill of Rights, it would have been this:

PART I Bill of Rights

Recognition and declaration of rights and freedoms

1 It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

• (a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;

Big difference, eh?

No matter which way you slice it, Conservative and Liberal Canadians should all be dancing in the streets that our Canadian civil rights have prevailed.

But no.  Canadian Conservatives are doing everything they can to encourage Canadian outrage over the settlement.

New Conservative Party Leader Andrew “Scheer said Khadr has already been compensated by being able to live freely in Canada.”

There is a lot more in the Bill of Rights about

Omar Khadr admitted that he killed a U.S. Army Medic, Christopher Speer. Now Mr. Khadr will be a wealthy man thanks to the Liberal government handing him millions in taxpayer dollars. Conservatives believe that it is one thing to acknowledge alleged mistreatments, but it is wrong to lavishly reward a convicted terrorist who murdered an allied soldier who had a wife and two children. Our thoughts continue to be with Christopher Speer’s widow and family, who must relive their ordeal every time this issue comes up in the media. Given Mr. Khadr’s admission of guilt, Conservatives are calling on him to give any settlement money to Sergeant Speer`s widow and two children.”

— Conservative MP Tony Clement 

I would have hoped an MP like Tony Clement who is a former government Cabinet Minister would understand the words he uses.  “Alleged” means accused but not proven, but in fact the highest court of the land accepted the proof of Omar Khadr’s “mistreatment.”  To my mind as a writer, “mistreatment” is an awfully mild characterization of “torture”.

In spite of Mr. Clement’s attempt at misdirection, the settlement had nothing to do with Mr. Speer.  If Mr. Clement was eager to use the word “alleged” it ought to have been “alleged terrorist who allegedly murdered an allied soldier.”  Although Mr. Khadr was convicted by the American Government, neither terrorism or murder were proven.  Once you get past the sensational headline $10.5M settlement for Omar Khadr ‘absolutely wrong’: Clement, Even the Toronto Sun is careful to stick to the facts:

“Khadr was accused of throwing the grenade that killed Speer but the evidence against him was flimsy.”

Mr. Khadr was told without signing the confession demanded by the Americans, he might spend the rest of his life in Guantanamo Bay.  There was no trial, no doubt because there was no evidence beyond the confession of a wounded and tortured 15 year old child.  Do American courts accept the confessions of tortured children?  Guantanamo Bay “justice” operated outside the established Rule of Law for a reason.

One of the other pieces of “evidence” we know was tortured out of Omar Khadr was an identification of Canadian Maher Arar as a terrorist.   On the basis of this false identification, Mr. Arar was himself arrested, locked up and tortured for a year, when his innocence was finally proven.   It has long been known that torture is unreliable because people subjected to torture will generally say anything to make it stop.  Mr. Arar’s compensation was $10 million

To my mind, the only human being with a legitimate beef against Mr. Khadr would be Maher Arar.  Yet he is one of the young man’s staunchest defenders.

A comprehensive accounting of the “evidence” against Omar Khadr by former Crown Prosecutor Sandy Garossino can be found here.

Audrey Macklin explains Ottawa failed Omar Khadr: That’s why he deserves compensation.

Discussion about why

Compensation isn’t a Reward

The $10.5 million settlement paid to Omar Khadr is not an acknowledgement of “alleged mistreatments,” as Mr. Clement suggests.  It is compensation for Canadian Government’s complicity in the torture of a Canadian.  This is a legal consequence—  the price the Canadian Government has to pay— not just for failing to uphold the Charter protections that every Canadian is owed, but for deliberately acting against the interests of a Canadian child.

This is not voluntary, it is punishment.  Mr. Clement was a Conservative Cabinet minister through much of Omar Khadr’s ordeal.  Just like people who break laws, Governments must be accountable for the laws they break.

And it certainly should NOT be a surprise.  After Maher Arar was vindicated, the Government of Canada conducted a Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, but the Canadian Government chose not to heed the recommendations.

Perhaps Mr Clement is right: maybe the compensation paid to Omar Khadr shouldn’t come from taxpayers.  Wouldn’t it be better coming out of the pockets of the Canadian Governments whose malfeasance requires compensation—  or at least the pockets of the Prime Ministers and the Cabinet Ministers responsible for the egregious behaviour.

Rights of the Child

Canada is also party to a number of International Treaties including those guaranteeing the rights of children. Particularly important in relation to the Omar Khadr case is the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict It is important to note that “optional” doesn’t mean our Government has leeway to decide whether or not to follow these rules, but that signing it was optional.  Canada chose to sign it, and Parliament agreed and ratified it.  Making it legally binding.

A 15 year old caught up in war is a Child Soldier.  This is not up for debate, your opinion on whether this should be true does not matter: this is Canadian Law.

Omar Khadr’s America military counsel Lieutenant-Commander William Kuebler was very clear both that the boy should have been brought back to Canada for ant legal process and that “I do not believe anyone can get an aquittal in Guantanamo Bay.”

Those seeking to exploit this situation, whether to promote racism or for some political ends, have been doing their best to pit Canadian soldiers and their families against Omar Khadr as though he is taking funds that would have gone to them.  They point out how unfair it is for Omar Khadr to receive such a settlement when Mrs Speer, our soldiers, our veterans, and their bereaved families do not.

 “It’s upsetting to every veteran in Canada that’s trying to get a new wheelchair, or maybe a specialist to look at their back, or maybe an increase to their prescription because they’re having a hard time dealing with life,” says veteran Gus Cameron.

What is the real problem here?  It isn’t that Omar Khadr is getting a settlement.

Why is it that the Speer family is so impoverished they need to pass the hat? Actually, they didn’t ask for it, but Rebel Medi is happy of the chance to exploit them ti firward its divisive agenda.  Doesn’t the American Government make adequate provision for the soldiers who fight and die under their flag?  That doesn’t sound right.

Seems to me the real problem is that the American and Canadian Governments are not providing adequate funding for our military personnel, veterans and their families.

When Canadians serve in the Canadian military they deserve adequate compensation for their work.  They and their families should certainly receive adequate compensation in the event they are injured or killed.  The reality is, even if the money paid to Omar Khadr was divided up among all our veterans and their families, it wouldn’t go very far.

If every veteran in Canada that’s trying to get a new wheelchair, or maybe a specialist to look at their back, or maybe an increase to their prescription because they’re having a hard time dealing with life is not getting what they need, the problem isn’t Omar Khadr’s settlement, the problem is that their employer– that is to say the Government of Canada– is not doing it’s job.  If Canada is going to engage in war, it is essential that those who serve get what they need when they come home.  If Canada can’t afford to do that it has no business sending them off to war.

If Canadian military personnel are not being appropriately compensated, this is not Omar Khadr’s fault.  This is a false equivalency: two completely unrelated issues.  Omar Khadr is getting a one time settlement as compensation for having his rights violated.

Torture is not an Option

Our Charter does not permit torture.  Not for adults.  Certainly not for children.  It doesn’t matter what you did; torture is not allowed.  Not in Canada.  Not for Canadians.

The Charter is the foundation for Canadian law, a guide for Canadian lawmakers, law enforcement, security personel etc.  Such protections are generally applicable only on Canadian soil.  Canadians who break laws in other countries are not protected by the Charter.  It is in fact unusual for the Charter to have come into play at all, in this case because the Canadian Government chose to involve itself.

What we don’t often understand that the primary purpose of civil rights law is to protect citizens from potential abuse of power by the state.  The Charter was not meant to protect citizens like Omar Khadr from abuse by the government or laws of another country, it is meant to protect Canadians from abuse by our own government.

Three Administrations of the Canadian Government—those of Prime Minister Jean Chrétien, Prime Minister Paul Martin, and Prime Minister Stephen Harper— all deliberately failed to protect the rights of a Canadian child.  We know this because the highest court in the land has studied the situation and the law and determined this to be the case.  You don’t have to believe me; you can read the entire ruling for yourself.

“This Court declares that through the conduct of Canadian officials in the course of interrogations in 2003-2004, as established on the evidence before us, Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive  him of his  right to liberty and security of the person guaranteed by s. 7  of the Charter, contrary to the principles of fundamental justice.”
— Canada (Prime Minister) v. Khadr ~ Supreme Court of Canada Judgement 2010 SCC 3

When the Conservative Party of Canada is blames the Trudeau Government for making this settlement, it is trying to distract

And besides, torture doesn’t even work:  Why Torture Doesn’t Work – The Neuroscience of Interrogation

If you are interested in delving into the original documents of this case even more deeply, the University of Toronto’s Bora Laskin Law Library has an extensive Khadr Case Resources Page 

Sign The Petition

I’m glad Omar Khadr is home, safe, and wish him well in his new life. The only “crimes” proven against the young man seem to be listening to his family.  He went where his family took him and did what he was told.  Had he been an independent adult, this would provide no mitigation.  But he was a child living up to his parents expectations.  The imbalance of power between adults and children are the foundation for treating children as young offenders in our legal system, and as child soldiers in military situations.

I hope he can learn to shut his ears to the hate mongers and political extremists seeking to exploit him further.  He seems a remarkable young man; he would be welcome in my home.

Although the Canadian Government has apologized and made a settlement, you can tell Parliament that you support this decision by signing this Parliamentary e-Petition e-934

Video

If you haven’t seen this excellent CBC documentary from 2010, it can be watched on YouTube in 5 parts:

• The US vs Omar Khadr Pt. 1 | CBC,
• The US vs Omar Khadr Pt. 2 | CBC,
• The US vs Omar Khadr Pt. 3 | CBC,
• The US vs Omar Khadr Pt. 4 | CBC,
• The US vs Omar Khadr Pt. 5 | CBC

and a CBC Documentary Omar Khadr: Out of the Shadows is online (for Canadians only) at CBC here (for now).  This is an edited version of the feature length documentary Guantanamo’s Child.

For more information and to support Omar Khadr visit https://freeomar.ca/