Ottawa is asking the Supreme Court to decide if Canadian terror suspect Abdullah Khadr should be extradited to face trial in the United States, making what some experts say is a difficult choice between protecting Mr. Khadr's human rights and living up to international obligations to help fight terrorism.
The government argues in court documents that Canada's ability to comply with its international obligations could be compromised if a decision by the Supreme Court of Ontario staying his extradition is allowed to stand.
"This case raises issues of national importance that require consideration by this court," Ottawa says in its leave-to-appeal request, obtained by The Canadian Press. It adds that principles of fundamental justice "should not be used to impose the technicalities of our criminal law on a foreign partner."
Mr. Khadr, 29, is the eldest son of Ahmed Said Khadr, an Egyptian Canadian who was closely associated with Osama bin Laden. A court in Boston indicted Abdullah Khadr in December, 2005, on charges of supplying weapons to al-Qaeda while living in Pakistan following the 9/11 terror attacks. Abdullah is also the older brother of Omar Khadr, who pleaded guilty to murder and terrorism charges and is imprisoned in Guantanamo Bay.
Ontario Supreme Court Justice Christopher Speyer ruled last August there was enough evidence to send Abdullah Khadr to the United States for trial, but he stayed the extradition saying the U.S. had violated Mr. Khadr's fundamental rights by paying Pakistan a $500,000 (U.S.) bounty for his arrest and holding him for 14 months in an "illegal and arbitrary detention."
The Ontario Court of Appeal upheld Judge Speyer's ruling in May.
Mr. Khadr's lawyer, Dennis Edney, said he was "not surprised" Ottawa was seeking leave to appeal. He said the government has consistently fought strong Appeal Court rulings that involve the Khadr family, only to lose before the Supreme Court.
But experts in international relations say the outcome of the case could have important implications for how Canada deals with extradition cases in the future.
In its ruling, the Appeal Court decided that judges are not required to sacrifice important legal rights and democratic values to ensure that a proceeding against an alleged terrorist goes ahead.
Wesley Wark, an expert on national security issues at the Munk School of Global Affairs at the University of Toronto, said a decision to keep Mr. Khadr in Canada could "undercut" Canadian extradition law, making it harder to send people to countries where the legal system may differ from Canada's.
Stephanie Carvin, a lecturer in international relations at the University of London, said Ottawa has competing obligations to fight terrorism and to ensure that courts uphold individuals' rights to due process. Successive Canadian governments and courts have generally favoured their obligation to fight terrorism, she said, adding that the Ontario Court decision was the first to shift the emphasis to guaranteeing the right to due process.
"The issue is how do you balance these two obligations," she said. "I think that protecting human rights should always take precedence, but the difficulty here is that if he has done these things, respecting his right to due process may mean this person walks free."
With a report from The Canadian Press