From The Ottawa Citizen.
Top court will hear federal appeal of Khadr repatriation order
By Janice Tibbetts, Canwest News Service
OTTAWA — The Supreme Court of Canada will decide whether the Harper government must seek Omar Khadr’s repatriation from Guantanamo Bay, Cuba.
Without giving reasons, the court announced Friday it will hear a government appeal of rulings in the Federal Court and Federal Court of Appeal ordering the Conservatives to ask the United States to surrender the young Canadian man.
The Supreme Court agreed to expedite the appeal and the case will be heard Nov. 13.
The court’s decision to hear the case means the bench will tackle the thorny issues of what duty, if any, a government has to protect its citizens abroad and whether elected officials should have the discretion to decide when and if they will seek the return of a Canadian detained in another country.
Federal Court Justice James O’Reilly ruled in April that the government, by its years of indifference to Khadr, violated his Charter of Rights guarantee to fundamental justice and, therefore, must seek the 22-year-old’s return “as soon as is practicable.”
In particular, Canadian officials failed Khadr and violated international human rights norms by interviewing him at the U.S. military camp and then passing on the intelligence to American officials, all the while knowing that he had been subjected to sleep deprivation to induce him to talk, O’Reilly concluded.
While the Charter of Rights does not normally protect Canadians accused of crimes abroad, O’Reilly drew heavily on a May 2008 ruling in the Supreme Court of Canada that found all bets are off when it comes to Guantanamo Bay because the process of detaining prisoners at the compound did not comply with either U. S. domestic or international law.
O’Reilly’s decision was upheld last month by the Federal Court of Appeal, with a strong dissenting opinion from Justice Marc Nadon, who sided with the government’s argument that it should have the power to decide whether to request the return of a Canadian detained abroad.
Khadr, who was born in Toronto in September 1986, is charged with murder as a war crime for allegedly throwing a grenade that killed a U.S. army medic on a battlefield in Afghanistan in July 2002.
His trial was suspended in January after U.S. President Barack Obama said the military unit at Guantanamo Bay would close within a year. Khadr is the only remaining westerner at the prison.
Prime Minister Stephen Harper has maintained Khadr is charged with a serious crime, and the government should wait to find out if the U.S. intends to drop charges before making any moves.
The government also has said it has done plenty to help Khadr, including requests for consular visits, insisting on medical treatment for the young man, supplying him with educational materials, and seeking assurances he would not be subject to the death penalty.
The current appeal arises from an August 2008 legal challenge filed by Khadr against the prime minister, the minister of foreign affairs, the director of the Canadian Security Intelligence Service, and the commissioner of the RCMP.