I have never dealt in this space with the right of Canadian citizens to enter Canada. The simple reason for this is that the law on this point is crystal clear and rarely in dispute.
This right is considered a “fundamental” one and so it is entrenched in our Canadian Charter of Rights and Freedoms which was signed by Queen Elizabeth in 1982.
Our Charter describes this right as follows:
“Every citizen of Canada has the right to enter, remain in and leave Canada.”
Admittedly, like all other rights and freedoms contained in our Charter, this right is subject only to such reasonable limits ‘prescribed by law’ as can be demonstrably justified in a free and democratic society. I know of no law that prescribes a set of circumstances whereby this right can be limited or infringed.
Accordingly, the mobility rights of a Canadian citizen are relatively absolute. A citizen can leave Canada at anytime, return here at anytime, and remain here for as long as he/she likes.
Pretty simple, huh?
Not when it comes to Omar Khadr.
This fundamental right seems to have somehow been ignored during most of the debate, and some of the rhetoric, that surrounds this Canadian citizen’s controversial set of circumstances.
Now that President Barack Obama has signed executive orders temporarily suspending the trials of Guantanamo inmates and the shutting down of the notorious facility within the year, our government is left scratching its head in search of a new “Khadr” policy to replace the one it had tailored for the previous U.S. administration.
Similarly, the Obama administration must now figure out what it will do with all these prisoners. No doubt, it would love to hear that Canada will take Khadr off its hands.
However, Prime Minister Stephen Harper has publicly stated that he will not allow Khadr back here unless the charges against him are dropped for good. Of course, Harper has not explained what legal authority he has to prevent Khadr, a Canadian citizen, from exercising his right to return to Canada. Furthermore, whether or not charges are pending against Khadr is not a barrier to his exercise of this right. It is also irrelevant whether Khadr was or was not a child soldier. It is even irrelevant if he is guilty or not of the crime which he is accused of. These are all issues that relate to offences for which he might later be tried in Canada or even in the USA. They have no relevance to his right to return to his country of nationality.
Even the Canadian opposition has it wrong. Liberal foreign affairs critic Bob Rae suggested that Harper appoint a panel of experts to advise the Canadian government on how to deal with Khadr. Any expert, in my view, would agree that Khadr has a constitutional right to return to Canadian soil. What happens to him after that is a matter of domestic criminal law which is unrelated to his right to enter Canada.
The thousand or so senior judges who together form the Canadian Superior Court Judges Association describe our justice system as follows: “We are said to be ruled by law, not by those who enforce the law or wield government power.”
President Obama’s actions have signaled a swift and firm return to the rule of law.
I hope that we will follow not only the American lead but also our own legal tradition.
Guidy Mamann practices law in Toronto at Mamann, Sandaluk and is certified by the Law Society of Upper Canada as an
immigration specialist. Reach him confidentially at 416-862-0000 or at
metro@migrationlaw.com.
