Omar Khadr, a Canadian citizen, will not be repatraited to Canada following a Supreme Court ruling that effectively absolves the government of any responsibility to seek his repatriation.
The ruling overturned two lower court decisions that ordered the government to request Khadr’s repatriation.
The Court denounced Canadian authorities’ role in Khadr’s interrogation at Guantanámo Bay as a breach of the Canadian Charter of Rights and Freedoms. However, the Court did not request his return to Canada.
The Court’s ruling said that the involvement of Canadian officials in Khadr’s interrogation “offends the most basic Canadian standards about the treatment of detained youth suspects.”
The justices also found that the request of repatriation was a remedy “sufficiently connected to the Charter breach,” but added that it was up to the federal government to determine how best to respond, because foreign affairs fall within its purview.
Dimitri Soudas, a spokesperson for Prime Minister Stephen Harper, has said that the federal government’s policy on Khadr has not changed. He added that Khadr faces “serious charges” and that he should stand trial in the U.S.
The government released a statement yesterday, however, that it will consider undisclosed alternatives that may compensate for the violation of Khadr’s rights.
Khadr’s Canadian lawyer, Nathan Whitling, said he was disappointed with the Supreme Court’s ruling, and that he did not expect any significant change in the government’s position.
“We’ve been trying to [lobby the Canadian government] for roughly six plus years now, and, so you know, frankly I am getting a little tired of it,” Whitling said.
Khadr is accused of having thrown the hand grenade that killed an American army medic in Afghanistan in July of 2002. Khadr, now 23, was 15 at the time of arrest, making him a minor under Canadian and international law.
McGill law professor François Crépeau disagreed with the Court’s decision that Khadr’s case was a matter of foreign policy.
“The Court did not have to dictate the foreign policy…. Here they agreed there was a rights violation and I think they should have imposed a sanction. If there is a rights violation, it is within the Charter, and the Court has a right to enforce the Charter,” said Crépeau.
“[Khadr’s case] shows that the Canadian government cannot go in and interrogate someone that has been tortured, subjected to inhumane and degrading torture. That is against the Charter. In that sense, a small part of Canadian foreign policy is [now] constrained by the Charter, which is new. It didn’t exist in international law,” Crépeau said.
The Court’s ruling concludes years of litigation in Canada; Khadr’s legal battle in the U.S., however, is far from over. He will face a U.S. military commission in July, and his lawyers will now shift their focus to prepare for the trial in Guantanámo.
Whitling expressed concerned about the lack of due process in the military commission system.
“The Charter doesn’t apply to those proceedings, and the U.S. prosecution takes to the view that the U.S. Constitution doesn’t even apply. His rights are limited to what is recognized by the Military Commissions Act, and they are very limited,” said Whitling.
Crépeau said that the military commissions, though slightly improved, were still not normal criminal tribunals, and in that sense did not offer proper procedure for trying individuals.
“This is a convoluted and protracted process and we don’t know how they are going to behave, especially with someone who was a minor, who I think, as many others do, was a child soldier,” said Crépeau.