Omar Khadr is not coming home yet - but the Supreme Court of Canada has moved his repatriation considerably closer.
In an 9-0 ruling this morning, the Court said that Canada violated Mr. Khadr's Charter rights by participating in illegal interrogation methods which included sleep deprivation.
It stressed that the constitutional breach is ongoing and "continues to this day."
However, the court said that before stepping in to dictate a Canadian response on a sensitive question of foreign policy, the federal government must be given a chance to rectify Mr. Khadr's plight.
But should the government fail to act, the court warned that it has the power to move more overtly to aid Mr. Khadr.
The Court upheld an earlier Federal Court decision that Mr. Khadr's right to life, liberty and security had been violated, but it refused to go as far as the lower court had gone in ordering Mr. Khadr to be brought home.
"Consistent with the separation of powers and the well-grounded reluctance of courts to intervene in matters of foreign relations, the proper remedy is to grant Mr. Khadr a declaration that his Charter rights have been infringed, while leaving the government a measure of discretion in deciding how best to respond," the Court said.
However, the judges could scarcely have been tougher in their finding that Mr. Khadr was mistreated during interrogations in 2003 and 2004.
"Canadian officials questioned Mr. Khadr on matters that may have provided important evidence relating to his criminal proceedings, in circumstances where they knew that Mr. Khadr was being indefinitely detained, was a young person, and was alone during the interrogations," it said.
"Interrogation of a youth to elicit statements about the most serious criminal charges - while detained in these conditions and without access to counsel and while knowing the fruits of the interrogations would be shared with the U.S. prosecutors - offends the most basic Canadian standards about the treatment of detained youth suspects."
Watch video of the Khadr interrogation
Since the information obtained in the interrogation sessions may still be used against Mr. Khadr in the U.S proceedings, the Court said that, "the effect of the breaches cannot be said to have been spent."
However, it noted that the fluid state of terrorism proceedings in the U.S at the moment dictates that courts ought to take a cautious approach and defer to government officials, who have a much broader and more nuanced sense of foreign policy considerations and the details of Mr. Khadr's case.
But if the government refuses to take adequate action to rectify the abuse of Mr. Khadr's rights, the Court warned, "courts are empowered to make orders ensuring that the government's foreign affairs prerogative is exercised in accordance with the constitution."
Advocates for Mr. Khadr showed disappointment that the Court did not directly order Mr. Khadr's repatriation, but focused on its clear finding of a continuing rights violation.
"The government can continue to sit on its hands - and therefore look like it is being completely unresponsive to a unanimous decision from the highest court in the land," said Alex Neve, a spokesman for Amnesty International.
Mr. Neve said that repatriation continues to be the best possible solution to remedy Canada's illegal acts.
"We are not at all naïve here," he said. "Clearly the government has dug in its heels for several years now. We are not naïve enough to think it will happen without pressure.
"We are not going to wait six months. We are not going to wait six months. We want there to be a reaction to this decision immediately."
Sukanya Pillay, security director of the Canadian Civil Liberties Association, said the ruling means "in effect, they have thrown the ball back into the government's court - but with clear rules."
"The judicial branch doesn't want to tread on the executive branch, but they have given clear signals," she said.
"The important thing is they have said we are willing to look at whether the government action is unconstitutional...Now, the important thing is what happens next. It was vague before as to why we would have to do anything. Now it is clear why because there is a clear constitutional breach."
Ms. Pillay declined to even discuss other options besides repatriation. "Its our constitutional law that when there is a breach of our Charter, there has to be a remedy," she said. "It is clear now that there was a breach to Section 7 of the Charter - and the government has to act."
If Mr. Khadr is repatriated, she said that there is no reason he cannot be tried in a Canadian court. Any evidence that was illegally obtained would be subject to Canadian rules of admissibility - as it ought to be - she said.Report Typo/Error
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