Audrey Macklin is a law professor and chair in human rights law at the University of Toronto.
This year is the 800th anniversary of the Magna Carta. The most venerated of its provisions is the "great writ" of habeas corpus. It enshrines the right of those whose liberty is deprived by the state to challenge the legality of that detention before a court of law. Habeas corpus is part of the Canadian legal order, and enshrined in the Charter. It is rooted in a long history but it has not lost its contemporary salience: It is the legal principle at stake in the recent decision of Alberta Court of Queen's Bench Justice June Ross concerning Omar Khadr.
The facts of Omar Khadr's life are well known by now. He has spent almost 15 years – half his life – in detention. He agreed to plead guilty to various crimes in 2010, which enabled his eventual transfer from Guantanamo Bay to a Canadian prison. Justice Ross's decision does not order his permanent release, but rather grants him bail (on conditions to be determined in a few weeks) pending an appeal of his convictions before a U.S. Court Martial Appeal Court.
There is nothing inherently unusual about a court granting interim release to a person appealing a criminal conviction. Bail, or interim judicial release, can be understood as a variant of habeas corpus. The question of whether bail serves the public interest usually depends on a balancing of factors: the seriousness of the offences, the strength of the appeal, the prospective delay in the determination of the appeal, and public safety. But nothing about Omar Khadr is treated as usual, and so it is worth unpacking Justice Ross's evaluation of these factors in Mr. Khadr's case.
The United States characterized the offences to which Mr. Khadr pleaded guilty as war crimes. They included attempted murder and murder in violation of the laws of war, as well as material support for terrorism. At the same time, the grounds of appeal are compelling: In 2012, a U.S. court found that "material support of terrorism" was invented by the U.S. post-9/11, and was not actually a war crime under the international laws of war when Mr. Khadr was captured.
The offence of "murder in violation of the laws of war" makes it a crime for a person whom the U.S. considers to be an "unlawful enemy combatant" to kill an American soldier on the battlefield. It is vulnerable to the same complaint of retroactivity, and Mr. Khadr's appeal would be the first to challenge it. Resolution of his appeal in the U.S. may take longer than his sentence, which would sap a victory of much of its practical value.
But why didn't the court deny Omar Khadr bail on grounds of public safety? After all, the federal government has spared no opportunity to remind the public that he is a dangerous terrorist and that he deserves whatever brutality is meted out to him.Yet, the government did not even attempt to argue that Mr. Khadr poses a danger to public safety. His counsel provided evidence "that he has been entirely co-operative and a model prisoner during his detention by United States and Canadian authorities, and that he has strong community support, and is therefore a low risk to public safety. The [government does] not challenge this affidavit evidence."
Inside the court, evidence counts. And the requirement to support assertions of dangerousness with facts left the government speechless. Outside the court, it's a different story.
The facts that seem to matter to the government are those that can tether the demonization of Mr. Khadr to the advancement of electoral goals, whether it is the passage of Bill C-51, or its "tough on crime" agenda. This may explain why the government was able to announce its intention to appeal Justice Ross's decision so fast that one wonders if Department of Justice lawyers had time to read, study and analyze it to determine whether there is a sound legal basis for appeal.
In the decade and a half since Mr. Khadr's capture by the U.S., Canada has invoked its subordinate relationship to that country as a reason not to act. When other countries successfully sought repatriation of their citizens from Guantanamo Bay, Canada did not. It claimed that asking the U.S. to repatriate Mr. Khadr might offend the U.S. Once the plea agreement was signed, Canada dragged its heels to delay repatriating Mr. Khadr, claiming disingenuously that it was simply deferring to the U.S.
In the bail hearing, the government pursued that theme again, claiming that granting Mr. Khadr interim release pending the U.S. appeal would violate the treaty on prisoner transfer, and offend U.S. sovereignty. Justice Ross wisely rejected that argument. It is surely time for Canada to stop hiding behind the U.S. Respecting the Magna Carta of 1215 would be a fitting way of commemorating it in 2015.