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Courts can't order Khadr's return, lawyer argues

Holding a banner that had a mark for each day Khadr has spent in captivity in Guantanamo Bay, a small but boisterous group from MUN Amnesty protested in the rain, drizzle and fog on the campus of Memorial Univesity in St. John's, NL.

Paul Daly/Paul Daly

Parliament and the Supreme Court of Canada appeared on a collision course on Friday as federal officials warned the judiciary not to force its hand by demanding that it seek the repatriation of Omar Khadr.

Despite being incarcerated in an isolated cell at Guantanamo Bay internment camp for his seventh year, the 23-year-old Canadian found himself at the epicentre of a worsening storm over whether Canada's political and judicial arms have abandoned a child-soldier conscripted into the al-Qaeda terrorist organization at the age of 15.

As the Supreme Court was hearing a historic appeal aimed at taking Mr. Khadr out of U.S. hands, federal lawyers and politicians were attacking the very notion that judges can tie their hands on matters of foreign policy.

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Officials insisted that the government will brook no interference with its long-held view that Mr. Khadr must remain in the U.S. court system until his case has been resolved.

While government spokesmen have stopped short of saying how they would respond if told to act, Ottawa could theoretically invoke the Charter of Rights' notwithstanding clause to override the Supreme Court.

Although the federal government has yet to use the override in the Charter's 27-year existence, many influential Tories have been half hoping that the day would come.

The Conservatives went so far as to send Prime Minister Stephen Harper's parliamentary secretary, Pierre Polievre, outside Parliament yesterday to tell reporters that it's up to the government - not the courts - to decide whether Canada should ask for Mr. Khadr to be returned home.

Despite being pressed by reporters, Mr. Poilievre refused to say whether Mr. Harper's government would respect the Supreme Court decision in the case.

"We believe the U.S. legal process announced today should run its course," he said. "Any decision to ask for Mr. Khadr's return to Canada is a decision for the democratically elected government of Canada, and not for the courts," Mr. Poilievre said.

Meanwhile, at the Supreme Court building, Dennis Edney, a lawyer acting for Mr. Khadr in the case, told reporters that the Obama administration would welcome diplomatic pressure from Canada to return Mr. Khadr.

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"It is very clear from information that we have received that the Americans would like to send Omar Khadr home," Mr. Edney said. "All it would take is a simple call from the Prime Minister."

A U.S. military lawyer appointed to represent Mr. Khadr, Barry Coburn, told reporters at the court that he was "devastated" that Mr. Khadr has been ordered to face a military commission.

"I'm deeply disappointed by the U.S. Department of Justice deciding that he will be tried by a military commission," he said. "The rules have just been rewritten. Our U.S. federal courts have been in existence for 200 years. Why they are not appropriate for Mr. Khadr's case is something I do not understand."

Inside the courtroom, lawyers for a host of human rights organizations exhorted the court to flex its constitutional muscle and find that the abuse and torture Mr. Khadr has suffered warrant the judiciary coming to his rescue.

Canadian Civil Liberties Association lawyer Marlys Edwardh warned the court against backing away from its duty "as guardian of the constitution," and allowing a foreign power to torture a Canadian citizen.

"What if the torture has ceased?" Chief Justice Beverley McLachlin asked.

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"What you are really being asked to do is to say that the government's Charter obligations can be diminished by lengthy, unwarranted delays in reaching a decision to ask for repatriation," Ms. Edwardh replied.

Torture is unacceptable in any circumstances, she added. "We didn't just leave the Star Chamber. We repudiated the use of its tools. ... Like the debate over the death penalty, this is about a citizen's right to be protected from torture."

Yet another member of Mr. Khadr's legal team, Nathan Whitling, told the court that Canada made a conscious decision in 2003 to participate with the United States in a process at Guantanamo that was deemed by U.S. courts to be illegal and unconstitutional.

Mr. Whitling said that he is not claiming that the government is under a legal duty to take diplomatic measures on behalf of any Canadian held by authorities abroad.

Rather, he said that the elements of torture and illegality in the Guantanamo military process create "special circumstances" that amount to a breach of Mr. Khadr's Charter right to life, liberty and security of the person.

However, Chief Justice McLachlin expressed concern that, with Mr. Khadr's mistreatment in the distant past, it may be too late for the courts to take drastic action.

"He has suffered greatly, perhaps, and with great consequence," she said. "But how does repatriation fix that?"

Federal lawyer Robert Frater underlined her concerns, insisting that the courts have no greater right to order Mr. Khadr be returned to Canada than they would have to order the recall of Canada's ambassador to Washington to protest against his detention, or to send an order amassing battleships on the Baltic Sea.

"We are in the realm of diplomacy here," Mr. Frater said. "The government has the right to decide what requests should be made, how they should be made, and when they should be made. The courts are not in the best position to do that."

Madam Justice Marie Deschamps questioned whether Mr. Khadr ought at least to have been formally given reasons for the federal decision not to intervene.

"He got his reasons," Mr. Frater said.

"Through the newspapers?" Judge Deschamps asked pointedly.

"Through statements by the Prime Minister," Mr. Frater replied. "He [the Prime Minister]wanted to let the process in the U.S. play out. This case involves serious allegations of terrorism and murder."

"I'm saying that we are a long way from recalling our ambassador," Mr. Justice Ian Binnie interjected.

Mr. Justice Morris Fish queried Canada's effort to aid Mr. Khadr and hasten the process he was entangled in: "Is there anything on the record to show that there have been efforts to accelerate the process?"

"I believe that the answer to that is no," Mr. Frater said.

The court has few constraints to the muscle it could show. In a ground-breaking Charter decision 20 years ago known Operation Dismantle, it found that judges can find and remedy Charter violations involving federal policy.

Mr. Khadr was arrested by the U.S. military in July, 2002, after a firefight in Afghanistan in which he suffered several gunshot wounds and other serious injuries.

He was charged with murder in the death of a U.S. medic and scheduled to go before a Guantanamo Bay military commission. However, U.S. President Barack Obama effectively shut down the commission system this year before Mr. Khadr could be tried.

After seven years of unceasing publicity and litigation, the Khadr case reached the Supreme Court by way of a Federal Court of Canada order compelling Ottawa to seek his return.

In the decision under appeal, Federal Court Judge James O'Reilly found that the government had failed to ensure that Mr. Khadr's treatment complied with international human rights norms, and ordered the government to seek his return.

He said that by adopting a passive stance while Mr. Khadr was in U.S. hands, Canada became complicit in tortures, which included sleep deprivation, the use of vicious dogs and bright lights that were shone for hours in Mr. Khadr's wounded eyes.

He found that there is a constitutional "duty to protect" Canadian citizens imprisoned abroad if they are abused in a manner that infringes their rights under the Canadian Charter of Rights and Freedoms.

On appeal the Federal Court of Appeal upheld the ruling by a 2-1 margin.

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About the Authors
Justice reporter

Born in Montreal, Aug. 3, 1954. BA (Journalism) Ryerson, 1979. Previously covered environment beat, Queen's Park. Toronto courts bureau from 1981-85. Justice beat from 1985 - present. More

Chief political writer

Campbell Clark has been a political writer in The Globe and Mail’s Ottawa bureau since 2000. Before that he worked for The Montreal Gazette and the National Post. He writes about Canadian politics and foreign policy. More

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