OTTAWA — The Supreme Court has confirmed Canadian officials violated Omar Khadr’s constitutional rights, but the judges left it up to the federal government whether to ask the United States to return him to Canada.
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 more than seven years ago.
The landmark decision is bound to renew debate over whether the Toronto-born Khadr can receive a fair hearing in the U.S. military justice system.
The Conservative government strongly opposes Khadr’s repatriation, but his lawyers and several interested groups argued before the high court that Canada should request his return.
Khadr alleges that while he was still in his teens his captors repeatedly threatened him with rape, isolated him and on one occasion used him as a human mop to wipe up urine.
Records show they deprived Khadr of sleep by moving him from cell to cell, a practice known as the “frequent flyer program” designed to break down resistance to interrogation.
The Supreme Court unanimously said Friday the government’s participation in the “then-illegal military regime” at Guantanamo breached Khadr’s guarantee of fundamental justice under the Charter of Rights and Freedoms.
But the court said it would “not be appropriate” to provide direction as to the diplomatic steps necessary to address the violations.
Rather, the government must “decide how best to respond to this judgment in light of current information, its responsibility for foreign affairs, and in conformity with the Charter.”
While not advising a particular course of action, the judges said “the remedy sought (requesting Khadr’s return) could potentially vindicate those rights.”
Dennis Edney, Khadr’s lawyer, said he was disappointed.
“A unanimous decision by our Supreme Court appeared to agree with everything that we said, and yet decided not to take control and make our government accountable under the law,” Edney said.
“The real remedy is the one that we put before the court, simply making a request (to Washington).”
Justice Minister Rob Nicholson said in a statement the government would carefully review the ruling “and determine what further action is required.”
The government is pleased the court recognized the responsibility of the executive to make decisions on matters of foreign affairs, he added.
Human-rights groups praised the ruling as a step forward.
Alex Neve, secretary general of Amnesty International Canada, called the decision “a very strong ruling on the human-rights front” and said he sees no other remedy but to ask for Khadr’s repatriation.
“There has to be an effective response that demonstrates that this government is prepared to stand up for the rights of Canadians.”
Sukanya Pillay of the Canadian Civil Liberties Association said the court has “thrown the ball back into the government’s court, but with clearer rules.”
In February and September 2003, officials from the Canadian Security Intelligence Service and Foreign Affairs questioned Khadr at Guantanamo and shared the results of their interrogations with the Americans.
A Foreign Affairs official interviewed him again in March 2004 knowing he had been subjected to the “frequent flyer” treatment. This time, Khadr refused to answer questions.
The Supreme Court said the interrogations offended “the most basic Canadian standards” about the treatment of young detainees.
The judges noted Khadr couldn’t challenge the legality of his detention and, at the time, had no access to a lawyer or any adult who had his best interests in mind.
“We conclude that Canadian conduct in connection with Mr. Khadr’s case did not conform to the principles of fundamental justice,” they said.
“Canadian officials questioned Mr. Khadr on matters that may have provided important evidence relating to his criminal proceedings, in circumstances where they knew that Mr. Khadr was being indefinitely detained, was a young person and was alone during the interrogations.”
The Federal Court of Canada ruled last April that the Conservative government must ask the United States to return Khadr “as soon as practicable.”
The Federal Court of Appeal rejected the government’s bid to overturn the decision, saying the conduct of the Canadian official who interviewed Khadr in 2004 amounted to “knowing participation” in his mistreatment.
The Supreme Court decision follows a one-day hearing last November that highlighted the deep and often emotionally charged differences over Canada’s role in Khadr’s treatment.
The government has consistently said U.S. military commission proceedings initiated against Khadr in 2004 must be allowed to play out.
Hearings are slated to begin in July. Khadr’s legal team plans to put forward a motion in April challenging some of the evidence.
Edney said his client is being tried in the military system as opposed to the U.S. federal courts because the path is easier for prosecutors.
“The evidence against Omar Khadr would not stand up in a federal court system.”
The Khadr family has gained global notoriety for apparent long-standing ties to al-Qaida leader Osama bin Laden.
Omar’s late father, Ahmed Said Khadr, was a purported extremist and financier for bin Laden’s terror network. A brother, Abdul Karim, was paralysed by wounds suffered in the firefight that killed his father.
Liberal Leader Michael Ignatieff said the question is not whether one likes Omar Khadr.
“The fact is he’s a Canadian citizen and we believe his rights ought to be protected,” Ignatieff said.
“The court respects the independence of the executive branch but I think the court is clearly saying to the government: ’Bring Omar Khadr home.’ And we agree with them.”