The Federal Appeal Court upheld a ruling Friday that ordered the Canadian government to press for the return of Omar Khadr from a U.S. military detention centre in Guantanamo Bay, Cuba.
In a 2-1 judgment, the Appeal Court found that Khadr’s rights under Section 7 of the Charter of Rights and Freedoms — the rights to life, liberty and security of person — had been breached when Canadian officials interviewed him at the prison at Guantanamo Bay and shared the resulting information with U.S. authorities.
In April, Federal Court Judge James O'Reilly ruled in favour of Khadr's charter challenge of the Canadian government's decision not to request his repatriation from Guantanamo Bay.
The federal government had appealed O'Reilly's decision and has long maintained that because of the seriousness of the charges, Khadr should face military proceedings in the United States.
Noting that the Appeal Court's ruling was a split decision, Prime Minister Stephen Harper said that he wouldn’t comment until the Department of Justice had examined the decision.
But the Appeal Court agreed with O’Reilly that Canada had an obligation to take steps to "protect Khadr from further abuse" and that by refusing to request his repatriation, his charter rights were also violated.
The Appeal Court also rejected the Crown’s argument that O'Reilly's ruling was a serious intrusion into the conduct of Canada’s foreign affairs.
"In the unusual circumstances of this case, it was reasonable for [the judge] to conclude that being ordered to make such a request of a close ally is a relatively small intrusion into the conduct of international relations," the Appeal Court wrote.
The Appeal Court also dismissed the claim that there is little chance the U.S. will abide by the repatriation request, since the U.S has complied with similar requests from other Western countries.
"The fact that Canada has no control over the response of the United States does not mean that it is inappropriate to order the request to be made," the Appeal Court wrote. "In the circumstances of this case, making the request is the most appropriate remedy Canada can offer."
But in a dissenting opinion, Justice Marc Nadon wrote that he believed O'Reilly erred in a number of his decisions. Nadon said O'Reilly's ruling was a "direct interference into Canada’s conduct of its foreign affairs."
"It is clear that Canada has decided not to seek Mr. Khadr’s repatriation at the present time. Why Canada has taken that position is, in my respectful view, not for us to criticize or inquire into," Nadon wrote. "Whether Canada should seek Mr. Khadr’s repatriation at the present is a matter best left to the executive."
Nadon also wrote that Canada had used "all necessary means at its disposal" to protect Khadr and that the only possible steps for the government were the ones that it took through diplomatic channels.
As for the Khadr interrogations by Canadian officials, Nadon noted that he could not "see the link between the inappropriateness of the interviews and the remedy of repatriation, a remedy which is, in my view, totally disproportionate in the circumstances."
The Toronto-born Khadr, now 22, is being held at Guantanamo and is accused of killing a U.S. army soldier with a hand grenade during a gunfight in Afghanistan in 2002, when Khadr was 15. His case remains on hold pending a review of the U.S. military tribunal system by the Obama administration.
In his 43-page decision, O'Reilly wrote that the federal government's continued refusal to request his repatriation to Canada "offends a principle of fundamental justice and violates Mr. Khadr's rights."
"To mitigate the effect of that violation, Canada must present a request to the United States for Mr. Khadr's repatriation as soon as practicable," the judge wrote.
Threatened with rape
Khadr's lawyers have argued the Canadian government was complicit in the detainee's alleged torture and mistreatment while in U.S. custody and is obliged under international law to demand his return.
Documents show Khadr's U.S. captors threatened him with rape, kept him isolated and deprived him of sleep. In 2003, Canadian Security Intelligence Service officers travelled to Guantanamo to question Khadr and shared the results of their interrogations with the Americans.
The watchdog over CSIS recently found the spy agency ignored concerns about human rights and Khadr's young age in deciding to interview him.
Nathan Whitling, one of Khadr's lawyers in Edmonton, said while he welcomed the ruling, he does not expect his client will be released any time soon. He said Khadr has won cases at the U.S. and Canadian Supreme Courts but so far, it has not done him any good.
"So we're not uncorking any champagne at this point. We're hopeful that this will result in some benefit for Omar. But that's just not clear yet."
Liberal foreign affairs critic Bob Rae said it's time for Khadr to come back to Canada.
"This is the time when the Canadian government has to take a position on behalf of a Canadian citizen. It is no longer acceptable for a Canadian citizen to be held in these circumstances."