For almost 13 years he has been behind bars, and now convicted terrorist Omar Khadr must wait two more days to learn whether he will be set free after an Alberta judge delayed her decision on the federal government's appeal of his release.
Justice Myra Bielby of the Alberta Court of Appeal said she would rule on Thursday morning on whether the 28-year-old poses an undue risk to the public and is not ready for such an "abrupt" release, as the federal federal government has argued in its appeal of a lower-court ruling last month that granted Mr. Khadr bail pending an appeal of his U.S. convictions.
Justice June Ross of the Alberta Court of Queen's Bench accepted Mr. Khadr's argument that he is a low risk and granted him bail. Her ruling on the conditions of his bail went ahead on Tuesday afternoon, but Mr. Khadr will remain in custody pending Thursday's judgment on his release, Justice Bielby ruled. If he is granted bail on Thursday, then the conditions set out Tuesday will stand, she said.
Mr. Khadr was captured in Afghanistan as a 15-year-old combatant by the U.S. military in July, 2002, and sent to Guantanamo Bay, Cuba. The United States sent Mr. Khadr back to Canada to serve out an eight-year sentence from a U.S. military commission on five charges, including the war crime of murder, for throwing a grenade that killed U.S. soldier Christopher Speer. He is now appealing the convictions.
Nathan Whitling, one of Mr. Khadr's lawyers, was dismayed with Justice Bielby's adjournment, telling the court that the government's evidence is "at best speculative" and that his client should be released pending the decision on Thursday.
Mr. Whitling added that it is a "virtual certainty" that Mr. Khadr's bail won't cause "irreparable harm" to other international transfers of Canadian prisoners, as argued by the government. That is because Mr. Khadr "slipped through the cracks" after a controversial plea deal and was transferred without his full appeal process ever being completed, he said. International prison transfers can't usually be completed if an appeal is outstanding and there are no other Canadian cases that could be affected by Mr. Khadr being released, he argued.
Government lawyers have admitted that he has been a model prisoner throughout his incarceration in Cuba and since his transfer to the Canadian prison system three years ago.
Bruce Hughson, a lawyer for the federal government, told the court on Tuesday morning that if Mr. Khadr was convicted of murder as a youth in Canada, he would probably face six years in prison and four years of parole. Mr. Hughson argued that given his "past life experiences" and "significant negative events," a more gradual release after time in a minimum-security prison would be best for Mr. Khadr and the general public.
A psychologist that recently assessed Mr. Khadr said he would face significant levels of stress if he was released, Mr. Hughson said.
"What an abrupt release does is prevent that gradual cascading effect," he said.
Throughout Tuesday morning's hearing, Mr. Khadr sat quietly while listening carefully to the judge and arguments from both sides.
Mr. Khadr has become both an international cause célèbre and a potent political symbol in Canada who has garnered international media attention. Human-rights groups in this country and abroad have argued that he should have been treated as a child soldier, with an emphasis on rehabilitation, after his capture. Instead, he was subjected to rough interrogations at the U.S. prison for suspected terrorists in Guantanamo Bay. Canadian officials visited him, questioned him in the absence of counsel, and turned over the fruits of their interrogation to his captors, for which the Supreme Court of Canada harshly criticized the Canadian government.
The Conservative government refused for years to try to repatriate him until the U.S. justice process played out, and Prime Minister Stephen Harper has spoken publicly about the need to punish Mr. Khadr for his crimes, as the former al-Qaeda member became an emblem of the government's fight against terrorism.
Mr. Khadr's family brought him to Afghanistan when he was 11. His father was a senior member of al-Qaeda.
Under his release plan, which still needs to be approved by Justice Ross, he would live with his lawyer, Dennis Edney, and his family. He would enroll in part-time studies at King's University, a small, Christian school. Through Skype, he would talk to his family in Toronto, some of whom sympathize with terrorism.
Justice Ross, in granting bail to him, said the federal government presented no evidence he would be a danger to society. She said evidence shows he has been a "model prisoner." She also said bail is a constitutional right in Canada and while Mr. Khadr is in Canada he is under Canadian law. The U.S. State Department made no comment when asked about Justice Ross's release order last month.
With a report from Sean Fine.