Ottawa did a right thing, though not the right thing, on the Omar Khadr case. The diplomatic note it is sending Washington is not trivial. Its request not to use evidence from Canada against Mr. Khadr is a formal recognition that this country wronged a citizen held in extreme conditions by the United States.
The Canadian government could have and should have gone further and asked for repatriation, with the terms of a plea bargain to be negotiated. Mr. Khadr has been held by the United States for seven years, since he was 15 and captured in Afghanistan. He is to be tried by a military commission for the war crime of murder, over an alleged grenade incident during a firefight with U.S. soldiers. Other Western nations have asked for and obtained the repatriation of their nationals from Guantanamo. Why? Because the system set up to try those people was unjust. Information gleaned under coercion, for instance, could be used against them. (Under President Barack Obama, such evidence is deemed out of bounds.) Mr. Khadr is the last Westerner at Guantanamo. Even if he is acquitted, the U.S. could still decide to hold him.
The Supreme Court of Canada made it clear last month that the Canadian government severely violated Mr. Khadr's rights in 2003-04, when the Liberals were in power. At a time when he had no legal counsel, and no access to any adult at all who had a stake in his well-being, Canadian officials visited him, interrogated him and turned over what they learned to the U.S., knowing Mr. Khadr faced a possible life sentence. This violated international conventions, as well as the Canadian Charter of Rights and Freedoms. On one occasion, Canada asked him questions knowing he had been subject to extreme sleep deprivation (Mr. Khadr did not answer the questions that time).
But the Supreme Court left it to the Conservative government to decide what to do about it. By asking that the evidence Canada turned over from the 2003-04 interrogations not be used against Mr. Khadr, the government is showing respect for the court's ruling, and putting the ball in Washington's court. Washington should show the Canadian government a measure of respect by acceding to the request, as Canada has shown respect for the U.S. in its handling of Mr. Khadr and the military commissions.
The position of Mr. Khadr's Canadian-based lawyers is nonsensical. They intend to argue in Federal Court today that Ottawa had no right to respond to the Supreme Court ruling without hearing their interpretation of that ruling first. This is no longer a matter for Canadian courts.
If Washington fails to act as Canada has requested, the logical next step would be to ask for Mr. Khadr's repatriation.
