OTTAWA — It’s up to the government, not the courts, to decide whether Omar Khadr should come home to Canada, a federal lawyer has told the Supreme Court.
The Toronto-born Khadr’s repatriation from a U.S. military prison is a political choice as opposed to a legal obligation, counsel Robert Frater told a hearing Friday.
“In my respectful submission, we’re in the realm of diplomacy here,” Frater said to a courtroom packed with onlookers.
He denied the government had ignored calls to bring Khadr back to Canada: “Mr. Khadr’s voice has been heard repeatedly.”
Khadr, 23, is being held by the Americans at Guantanamo Bay, Cuba, for allegedly throwing a grenade that killed a U.S. soldier in Afghanistan seven years ago.
The Conservative government strongly opposes his repatriation, but his lawyers and several intervener groups argue that he should be returned to Canada.
As the Supreme Court hearing was taking place, American authorities announced Khadr is among a group of terror suspects at Guantanamo who will be moved to the U.S. to face justice.
MP Pierre Poilievre, parliamentary secretary to the prime minister, welcomed the American decision and repeated the Harper government line.
“We acknowledge the decision of the Obama administration to prosecute Omar Khadr through the U.S. military commission system and we believe the U.S. military process announced today should run its course. “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.”
Poilievre refused to clarify if his statement means the government would ignore a Supreme Court order to seek Khadr’s return from the U.S.
American military court proceedings were initiated against Khadr four years ago and the Tories have rejected calls to deal with him on Canadian soil.
The court hearing will determine Khadr’s fate.
In a 2-1 judgment in August, the Federal Court of Appeal dismissed an earlier challenge by the Harper government, which has consistently refused to ask the Americans to send Khadr to Canada.
Documents show Khadr’s captors threatened him with rape, kept him isolated and deprived him of sleep by moving him from cell to cell.
Nathan Whitling, counsel for Khadr, argued Friday that returning the his client to Canada would help “lessen the harm” he has suffered.
Chief Justice Beverley McLachlin said while there’s no doubt Khadr had “suffered greatly,” she wondered how repatriating him would fix what’s now in the past.
Whitling said Khadr’s predicament amounted to “a unique case.”
The Federal Court of Canada ruled in April that the Conservative government must ask the United States to return Khadr “as soon as practicable.”
It said Canada’s refusal to request his repatriation offends fundamental justice and violates Khadr’s constitutional rights to life, liberty and security of the person.
The Federal Court of Appeal rejected the government’s bid to overturn the decision, saying the conduct of Canadian officials who interviewed Khadr at Guantanamo amounted to “knowing participation” in his mistreatment.
Canadian officials questioned Khadr at Guantanamo and shared the results of their interrogations with the Americans.
The appeal court said the principles of fundamental justice do not permit the questioning of a prisoner to obtain information after he has been subjected to cruel and abusive treatment to induce him to talk.
“Canada cannot avoid responsibility for its participation in the process at the Guantanamo Bay prison by relying on the fact that Mr. Khadr was mistreated by officials of the United States, because Canadian officials knew of the abuse when they conducted the interviews, and sought to take advantage of it,” the majority ruling said.
A publicized video in which a teenaged Khadr cries for his mother sparked an international uproar last year.
In his dissenting opinion, Justice Marc Nadon said the fact Canadian officials interviewed Khadr cannot amount to cruel and unusual treatment, even if they were aware that he had been denied sleep.
“Mere knowledge of Mr. Khadr’s mistreatment cannot be equated with participation in such mistreatment.”
In May 2008, the Supreme Court ruled in a separate case that Canada had taken part in a foreign process that breached its international human-rights obligations.
The Khadr family has gained notoriety for apparent longstanding ties to al-Qaida leader Osama bin Laden.
Omar’s father, Ahmed Said Khadr, was a purported extremist and financier for bin Laden’s terror network. He was killed by Pakistani forces six years ago.
A brother, Abdul Karim, was paralysed by wounds suffered in the firefight.