Foreign Affairs Minister Bill Graham has used a rare power of intervention to deny a passport to a former Guantanamo Bay detainee, documents show.
In the latest rift between the Khadr family and the Canadian government, Mr. Graham has, because of security fears, asserted a power known as royal prerogative to keep 21-year-old Abdurahman Khadr from leaving Canada.
Mr. Khadr's immediate family members are Islamic extremists, whose foreign travels and claims to Canadian privileges have frequently presented Ottawa officials with security concerns and public-relations nightmares.
The federal government is blocking Mr. Khadr from getting a passport in the spring. He is planning to appeal the move as a fundamental breach of his Charter rights.
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“It cannot be accepted by a free people in a functioning democracy,” said his lawyer, Clayton Ruby.
Canada is a constitutional monarchy and ministers can use royal, or Crown, prerogative — the monarch's historical powers that haven't been superceded by statutes passed in Parliament. In Canada, only a few day-to-day operations of government exist within this ambit — passports among them.
And while the governor-general uses the power for time-honored traditions, such as dissolving Parliament, Crown ministers rarely use it to address particular problems.
“The exercise of prerogative by cabinet or by individual ministers is rare,” said Peter Hogg, a former Osgoode Hall dean and a leading constitutional expert. He called the case “quite unusual.”
Newly available but partly censored legal documents show that last winter, Canadian Passport Office officials met several times with Canadian Security Intelligence Service officials to discuss how they could deny passports to Mr. Khadr and his family, who are all Canadian citizens.
On March 3, in a CBC documentary, Mr. Khadr said that his family took him and his siblings from Canada to live with Osama bin Laden and enlisted him in al-Qaeda camps during the 1990s.
He told of how he was captured during the U.S. invasion of Afghanistan, sent to Guantanamo Bay military prison in Cuba and later freed, he said, to work as an undercover U.S. spy in Bosnia.
He returned to Toronto on a temporary emergency passport last fall.
On the day the CBC documentary aired, Canada's Foreign Affairs Minister received a memo marked “secret” from three Passport Office officials.
“National interests and national security are not listed in the Canadian Passport Order as grounds for refusal of passport services,” the March memo read.
“This limitation constrains passport officials, but does not constrain the Crown.”
The minister was urged to use Crown prerogative to reject any passport application by Mr. Khadr “in the interest of the national security of Canada and the protection of Canadian troops in Afghanistan.”
Mr. Khadr lives in Toronto and is no longer accused of being a security threat. He says he gets no recognition for his dangerous undercover work as a U.S. spy against al-Qaeda.
He has, however, been in contact with his fugitive brother, Abdullah, who was wrongly reported to have been a suicide bomber who killed a Canadian soldier in Afghanistan last winter.
Their father was killed by Pakistani forces last fall in a raid that crippled another Khadr brother. Yet another brother is a prisoner in Guantanamo Bay.
Their mother created controversy when she returned to Canada this spring.
The March 3 memo pointed out to the minister that four Khadr siblings had been on watch lists since 2000 and there were considerations other than security: The “Canadian public and American government would be highly critical of full passport services being provided to this family.”
Mr. Khadr applied for a passport in April, but was rejected in May without being told why. He put Mr. Ruby on the case and filed a federal court action.
“The decision to refuse Abdurahman Khadr a passport was made by the Minister of Foreign Affairs in his exercise of the Crown prerogative, on the basis of national security concerns,” Peter Southey, a Justice Department lawyer, wrote to Mr. Ruby on July 2.
He conceded that Ottawa wrongly kept information from Mr. Khadr, meaning he could reapply for a passport if he wants.
But Mr. Ruby said his client has no intention of doing that — he hopes to reverse the current decision in court this fall.