A courtroom artist finishes a sketch of Canadian defendant Omar Khadr pictured during a military commission hearing at the U.S naval base in Guantanamo Bay, Cuba, on Jan. 19, 2009.Pool/Getty Images
Mr. Justice Russel Zinn of the Federal Court of Canada has given the government seven days to explain how it will move the long-lingering Omar Khadr case forward - which should be taken up as a valuable opportunity.
Mr. Khadr is the only remaining citizen of a Western country still awaiting trial by a military commission at the American base at Guantanamo Bay, Cuba. Other democratic governments have taken charge of their nationals, without expressing any approval of their doings in Afghanistan before U.S. and British forces landed in that country in October, 2001 - when Mr. Khadr was 15.
In the back-and-forth between the Canadian courts and the Canadian government over Mr. Khadr, the Supreme Court has established a sensible, balanced position. On the one hand, the government has the constitutional right and duty to use its discretion in managing Canada's relations with other states. On the other, the Supreme Court has confirmed that the government - though not while the present governing party was in power - violated Mr. Khadr's Charter rights, by interrogating him without counsel, and then passing what he said to the U.S. prosecutors, and that the government should somehow remedy that error.
That balanced position, however, has led to an impasse. Canada, to comply with the court, has asked the U.S. not to use those statements at Mr. Khadr's trial for murder, but with no result.
At this rate, the Khadr case may again make its way up through the Federal Court of Appeal to the Supreme Court, while the military commission procedure in Guantanamo grinds on.
Judge Zinn mentions in his reasons that Mr. Khadr's lawyers have suggested that the government should attempt to persuade the U.S. to try him as a juvenile - among other steps that they say would mitigate the Charter breach, though not correct it entirely.
Such suggestions get at the ways that these seemingly interminable proceedings could end. The Canadian government could seek to take an active role in plea bargaining between the U.S. military prosecutors and Mr. Khadr's American lawyers. Whatever Mr. Khadr did or did not do during a gun battle in Afghanistan in July, 2002, he was a teenager who had long been under the influence of terrorist or pro-terrorist family. There is plainly a reasonable case for at least some future supervision of Omar Khadr. If the federal government takes some initiative, this case might well be fairly resolved.