Seeking his first taste of freedom since he was 15, convicted terrorist Omar Khadr, now 28, will ask an Edmonton judge for bail on Tuesday, while his war-crimes convictions in the United States are under appeal.
He proposes to take a course locally at King's University College and live with his lawyer of more than a decade, Dennis Edney, Mr. Edney's wife, Patricia, and their 19-year-old son, in their six-bedroom home in an affluent neighbourhood near a country club.
"The Edney family has invited me to live as a member of the family, not merely a boarder," he says in an affidavit filed with the Alberta Court of Queen's Bench. He said he would keep in touch by Skype with his own, Ontario-based family, which at one time had several members involved in al-Qaeda.
To be set free, he will have to win over Justice June Ross. It is far from a sure thing.
The Canadian government argues that Mr. Khadr explicitly waived his right to an appeal as part of the plea agreement that brought Mr. Khadr back to Canada from the U.S. prison for suspected terrorists at Guantanamo Bay, Cuba. But Gary Solis, who teaches the law of armed conflict at Georgetown University in Washington, said in an affidavit that Mr. Khadr retains a right of appeal, under rules designed to ensure a verdict is accurate, and not merely one a defendant is prepared to accept.
Mr. Khadr was captured by the U.S. military shortly before his 16th birthday, after a deadly battle in Afghanistan. He became a cause célèbre, with rights groups here and abroad calling on Canada to seek his repatriation, and the U.S. to treat him as a child soldier in need of rehabilitation. Both countries insisted the military justice system be allowed to proceed.
In 2010, faced with a possible sentence of life without parole, Mr. Khadr pleaded guilty to the war crime of murder, by throwing a grenade that killed U.S. soldier Christopher Speer, and other charges, in return for an eight-year sentence from a U.S. military commission, and a transfer to Canada to serve the final seven years of that sentence.
He has since filed an appeal, citing a U.S. court ruling declaring retroactive war-crimes laws unconstitutional. The U.S. made it a war crime for enemy combatants to engage in battle with U.S. soldiers in Afghanistan, but that was several years after Mr. Khadr's capture.
Mr. Khadr's lawyers have filed affidavits in the bail case from two independent experts in the U.S. military justice system saying his appeal has a strong chance of success. The U.S. government has not yet filed a response to Mr. Khadr's appeal, so it is not clear where the appeal stands.
The Canadian government offers several reasons for opposing bail for Mr. Khadr, apart from Mr. Khadr having waived his rights. It says releasing the convicted terrorist would harm international relations, by undermining Canada's obligation to enforce the sentence given in the U.S. It says release would harm public confidence in the justice system.
And it suggests Mr. Khadr still represented a danger to society. "With respect to public safety, this Court must consider the seriousness of the offences to which [Mr. Khadr] has pled guilty as well as the facts underlying those offences that he has agreed to be true," the federal justice department said in a legal filing on behalf of warden Dave Pelham.
But the government offers no evidence from psychiatrists or corrections officials that Mr. Khadr poses a danger. His lawyers, however, produced statements from corrections officials in Canada, psychiatrists and U.S. officials saying he is capable of being rehabilitated. They included a statement from Captain Patrick McCarthy, an official at Guantanamo Bay.
"I believe, factually, that he did kill Sgt. Speer and that he did fight for Al Qaeda. However, I do not see in Omar Khadr an extreme zealot. Instead, to me, he seems an ordinary, westernized young man. I feel comfortable in his presence and believe he will be able to integrate well into society."
Mr. Khadr's proposed release plan cites support from Alberta educators, including novelist Rudy Wiebe, who have been visiting him at the medium-security Bowden Institution in Edmonton. Mr. Khadr says he will receive help in life skills – such as preparing a tax return – and would eventually like to volunteer and find a part-time job.
It is rare, though not unheard of, for Canadians convicted of murder to be released on bail while awaiting their appeal. But in a bail hearing involving war crimes, foreign-policy considerations, questions around how much responsibility Mr. Khadr bore as a teenager – and the fact that he is in line for statutory release next fall – the case has few, if any, comparable precedents.