Dennis Edney (right) and Nate Whitling, Omar Khadr's lawyers, hold their client's official bail release papers outside court in Edmonton, Thursday, May 7, 2015.Colin Perkel/The Canadian Press
The two criminal lawyers from Alberta who represent Omar Khadr could not be more different.
Dennis Edney, in his 60s, is a Scottish soccer player-turned-lawyer, a man lately famous for taking his client into his home, and calling Prime Minister Stephen Harper a "bigot." Nate Whitling is in his 40s, and cut his legal teeth at Harvard Law School and while clerking for a Supreme Court judge.
Yet for more than a decade, the legal duo has been an irritant to Ottawa officials, who sometimes seem to want nothing more than for the Khadr case to disappear. Within their profession, the two lawyers have been celebrated as paragons of pro bono (unpaid work) for burning up their billable hours – and bank-account balances – to wage a war of legal attrition against the government.
Mr. Khadr was a 15-year-old fighter aligned with al-Qaeda when he was captured in a deadly Afghan firefight in 2002. Now 28, he is serving what is left of his sentence on bail while living at the Edmonton home of his court-appointed keeper: Mr. Edney.
Last week, a third case regarding Mr. Khadr hit the Supreme Court. No one but Henry Mortgentaler has lent his name to as many top-court rulings. And like the 1980s-era abortion provider, Mr. Khadr is a person whose very existence can induce "paroxysms of moral outrage" – words a former Canadian spymaster once used to describe the public-relations implications of the file.
Mr. Khadr might still be in a cell at Guantanamo Bay in Cuba were it not for the repeated interventions of his two lawyers. Their different styles were on full display last Thursday. "Dennis is the passion, Nate is the brains," said Brian Hurley, an Edmonton lawyer who knows both.
Whitling in the spotlight
The legal question facing the nine Supreme Court of Canada judges last week seemed abstract, irrelevant and unique: Would Mr. Khadr belong in a federal penitentiary or a provincial jail had he not just been granted bail?
The Conservative government had pushed this case to the top court before Mr. Khadr was released. In the hearing, its lawyers sought the more punitive penitentiary option. With precise arguments and a calm and deferential tone, Mr. Whitling walked the judges through the minutiae of the International Transfer of Offenders Act. Its terms, he said, required Mr. Khadr to receive the lesser punishment because his age at the time of the crimes to which he pleaded guilty meant he must be considered a juvenile offender.
Within half an hour of breaking, the justices came back to announce they agreed with Mr. Whitling. Such rapidity is rare for the Supreme Court.
Retired justice John Major, who hired Mr. Whitling for his 1999-00 term as a law clerk, said that reserve and calm demeanour were evident back then.
"What I think impressed me was he was very polite," said Mr. Major, who remembers a young lawyer who was all brains and no bluster.
Good lawyers can need both, but "I think Nate's ability will overcome his modesty," Mr. Major said.
When Thursday's Supreme Court hearing ended, Mr. Whitling left the court quietly, as his co-counsel entered the Great Hall to address reporters.
"Mr. Harper doesn't like Muslims," Mr. Edney said. He questioned why the Conservative government continues to "spend taxpayers' dollars persecuting my client."
'We're opposites'
Later that day at Carleton University, dusk was spreading across the nation's capital from the 20th floor of Dunton Tower, as a packed conference room heard about a different kind of encroaching darkness.
"The politics of fear are spreading throughout this country," Mr. Edney told 100 people, mostly students. "I realized I had to do more than fight in court – I had to reach out to the Canadian public."
Referring to his client as "Omar, the man-child," he promised that if Conservative cabinet ministers want to portray his client as an irredeemable terrorist – as they have done – he will respond with some name calling of his own.
A few years ago, a Scottish tabloid profiled Mr. Edney as an expatriate exemplifying his nation's characteristic working-class stubbornness: "A lorry driver's son from Dundee" who played "low-level professional football" before becoming a Canadian criminal lawyer at nearly 40.
Mr. Edney runs his own law practice in Edmonton, while Mr. Whitling has worked with large criminal defence firms. They first teamed up in the early 2000s to represent accused cocaine traffickers. It was around that time that Mr. Edney cold-called the Khadrs in Toronto to ask if they had legal representation.
They did not. He offered his services and got Mr. Whitling to join him. "The challenges facing Omar Khadr would have taken up the resources of a full-time law firm," Mr. Edney said in an interview. Of his relationship with Mr. Whitling, he said: "We're opposites, but it works."
At Carleton, Mr. Edney described the experimental U.S. military prison at Guantanamo Bay as a place where torture is the rule, not the exception. That is where he said he met a shattered, withdrawn teenager shackled in a cell a decade ago.
"You'll leave me. Everybody does," he recalls Mr. Khadr saying after an initial meeting. "No, I won't," he replied.
Return airfare meant burning through personal finances. "There are times I felt ashamed I used the family savings," said Mr. Edney, who has two grown sons.
He would not give details of what the case has cost him, but recalled how he once accepted an award from his fellow lawyers.
"I remember addressing 200 lawyers, and I remember saying to them I'm not a pro bono lawyer – there's not such a word in the Scottish dictionary. I got a standing ovation from all those lawyers, but not a call the next day providing help."
Colin Freeze