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In this courtroom drawing by artist Janet Hamlin, reviewed by the US military, Canadian-born accused terrorist Omar Khadr attends a pre-trial session in Camp Justice on the U.S. Naval Base in Guantanamo Bay, Cuba, Friday (Janet Hamlin)
In this courtroom drawing by artist Janet Hamlin, reviewed by the US military, Canadian-born accused terrorist Omar Khadr attends a pre-trial session in Camp Justice on the U.S. Naval Base in Guantanamo Bay, Cuba, Friday (Janet Hamlin)

Top court to rule on Khadr case Add to ...

After tying Parliament and the justice system in knots for seven years, the Omar Khadr case reaches a crescendo Friday as the Supreme Court of Canada considers ordering the federal government to seek his return.

Should the court uphold a 2008 Federal Court of Canada decision, the 23-year-old Canadian could soon be on his way home from the terrorist internment camp at Guantanamo Bay.

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However, federal lawyers intend to fight Mr. Khadr every inch of the way. In a scathing brief to the court, they call the Federal Court of Canada order to seek Mr. Khadr's return "an unprecedented and unprincipled remedy."

The government will be opposed by a phalanx of lawyers for Mr. Khadr and organizations that support him. They condemn Canada for being a party to the torture of a citizen who was conscripted into the al-Qaeda terrorist network as a child soldier.

"The number of permitted intervenors in this case - 10 separate ones, including everything from Amnesty International, to Avocats sans Frontières and the Canadian Bar Association - underscores that this as a real Rubik's cube puzzle of a case," Ottawa lawyer Eugene Meehan said.

The pro-Khadr groups depict Mr. Khadr as being not a terrorist, but a frightened child who wept for his mother after his arrest and implored his country to help him. They contend that Canada's passive stand in the case made it little better than the troops who subjected Mr. Khadr to sleep deprivation and shone bright lights for hours in his wounded eyes.

"Had this abuse occurred in Canadian custody at the hands of Canadian officials, those officials would have committed crimes of the utmost seriousness under Canadian law," a brief from the B.C. Civil Liberties Association argues.

The government's brief warns the judiciary not to create a foreign-policy nightmare by micromanaging sensitive situations abroad involving Canadians. "Canadian courts should not be used to lobby the government to exercise its discretion in a particular way," it said.

The court could be poised to deliver a historic statement in favour of human rights and condemning the use of torture. However, University of Toronto law professor Kent Roach predicted that it may just as easily take a narrow, legalistic approach.

"Sometimes courts decide less, rather than more," Prof. Roach said. "I would be surprised there is a broad, sweeping judgment that opines generally about Guantanamo or the rights of people held at Guantanamo."

The U.S. military arrested Mr. Khadr in July, 2002, after a firefight in Afghanistan in which he suffered several gunshot wounds and other serious injuries. He was charged with murder 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. The Obama administration has promised to issue a decision by next week on whether Mr. Khadr will be tried in a military court or in the U.S. domestic legal system.

In the decision under appeal Friday, Federal Court Judge James O'Reilly found that the government failed to ensure that Mr. Khadr's treatment complied with international human-rights norms. He harshly criticized a 2004 interrogation session by Canadian officials that took place amid the unacceptable conditions of Mr. Khadr's detention.

Judge O'Reilly pinned his ruling on a constitutional "duty to protect" Canadians imprisoned abroad.

The Federal Court of Appeal upheld his ruling by a 2-1 margin.

 

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