Omar Khadr and "Treason"

A tiny "grass roots" group with a history of taking up anti-Omar Khadr causes has launched a new petition to have Khadr charged with treason.

This suggestion comes up frequently as the "go to" excuse to extend, enlarge and otherwise crank up the punishment already levied on child soldier Omar Khadr.

Occasionally it pays to open a law book or two when suggesting serious criminal charges, and they don't get much more serious than treason. As a lawyer myself, the first thing I do is look up the law to make sure I don't look foolish from the get go. Not so for these so-called citizen advocacy groups.

If they had looked up the actual law of treason in Canada they would have found sections 46 to 50 of the Criminal Code, specifically section 48:

48. (1) No proceedings for an offence of treason as defined by paragraph 46(2)(a) shall be commenced more than three years after the time when the offence is alleged to have been committed.
(Canadian Criminal Code section 48) 

There is a similar statute of limitation against the more serious "high treason", which includes war against Canada and its allies contained in s. 46(1) (see: STEPHEN, James Fitzjames, 1829-1894, A History of the Criminal Law of England, London: MacMillan, 1883, vol. 2, see Chapter XVI, "Time" at pp. 1-2; "Prosecutions for high treason, other than treason by assassinating the sovereign, and for misprision of treason, must be prosecuted within three years (7 & 8 Will. 3, c. 3, ss. 5, 6)". 

That's right. If the Canadian government wanted to charge Khadr with treason, it had to do it within 3 years of the offence - that means by 2005 at the latest. No extensions past 3 years from 2002.  

And they didn't. End of story. Petition all you like, it's not the law.

Some enterprising individuals with a feeble grasp of law - both statute law and "natural law" that have governed us for centuries - have suggested that we should just change the law to suit these particular circumstances and then apply them retroactively against Khadr.

No. No. No.

One of the great principles of western and particularly English common law is that you can't retroactively create offences. If it isn't a crime at the time you do it, you can't be charged. If you are not charged within the period, you can't be charged. 

This is the great legal tradition that is the safeguard against tyranny. If the government of the day can create new offences or laws that have retroactive effect, then no one is safe. 

Go back and change the tax rates for the last 5 years so you owe more money? Change the speed limit on highways and give everyone a ticket? Make it a criminal offence to insult the Prime Minister starting the beginning of last year and put all critics in jail?

One of the earmarks of dictatorships is they do retroactively create and apply laws. Hitler did. Some modern tyrannies do. It is a way to silence enemies. No one is safe from the one thing that preserves liberty for all - the rule of law and knowing what the law is today so we know we are not breaking any.

So you can't go back and change a law about treason (assuming anyone would be willing to use this legal tool which is also the last resort of tyrants) or anything else to catch someone after the fact.

You don't even have to go to law school to know this great tradition of British justice - just read your Rumpole of the Bailey. Or rent the videos.

Also inconveniently for the would-be Khadr persecutors, treason outside of Canada only applies to Canadian citizens (Canadian Criminal Code, section 46(3)), something they also continually seek a means to deprive him of. For the record, it also is impossible to strip a native-born Canadian of their citizenship under our and international law, so stop suggesting it.

The rule of law is what preserves our liberty and democracy, and these cheap attempts to bend or break it threatens us all in ways that Omar Khadr never could.