Omar Khadr shown at a U.S. military hearing in Guantanamo Bay, Cuba, in January 2009.Omar Khadr shown at a U.S. military hearing in Guantanamo Bay, Cuba, in January 2009. (Canadian Press)

The Supreme Court of Canada has overturned lower-court orders that the federal government must try to repatriate Toronto-born Omar Khadr from the U.S. military prison in Guantanamo Bay.

However, the top court agreed Canadian officials violated Khadr's human rights, and that he continues to be threatened by the effect of those violations.

In a unanimous decision released Friday, the court declared that Canadian officials breached Khadr's right to life, liberty and security of the person under the Charter of Rights and Freedoms.

However, it concluded that ordering the government to ask the U.S. for Khadr's repatriation to stop the continuing violation of his rights would interfere with the government's jurisdiction over foreign relations. Therefore, it chose not to issue the order, even though it had the authority to do so.

"We … leave it to the government to decide how best to respond to this judgment in light of current information, its responsibility for foreign affairs and in conformity with the charter," the ruling said.

Khadr, 23, has been imprisoned at Guantanamo Bay, Cuba, since he was arrested in Afghanistan at age 15, accused of throwing a grenade that killed a U.S. soldier. He is scheduled to be tried in July by a U.S. military court on charges of murder, conspiracy and support of terrorism.

Charter rights violated

Details of the Supreme Court ruling

The Supreme Court ruled that Section 7 of the Canadian Charter of Rights and Freedoms was breached in Omar Khadr's case, as Canadian officials contributed to the violation of his rights to life, liberty and security of the person.

It noted that CSIS officials obtained evidence from Khadr under "oppressive circumstances" during interrogations at Guantanamo Bay in 2003 and then shared that evidence with U.S. officials. The ruling said the interrogation "offends the most basic Canadian standards about the treatment of detained youth suspects," as:

  • Khadr was a minor and had been denied adult counsel.
  • He had been repeatedly deprived of sleep over a three-week period using a technique designed to make detainees more compliant.
  • The interrogation was designed to elicit statements about "the most serious criminal charges."
  • The information was to be shared with U.S. prosecutors.

The court agreed that Khadr's rights continue to be violated given the role of the information in his upcoming trial. It also concluded that bringing Khadr back to Canada would stop the violation of his rights by preventing him from facing trial.

However, it said ordering the government to demand Khadr's repatriation was not a suitable remedy for the violation of his rights as:

  • It gives too little weight to the government's constitutional responsibility to make decisions on matters of foreign affairs in the context of complex circumstances and Canada's national interest.
  • The court lacks the government's knowledge of foreign relations. "We do not know what negotiations may have taken place or will take place between the U.S. and Canadian governments over the fate of Mr. Khadr.

Therefore, the court felt it was not appropriate to give direction to the government about diplomatic steps to address the rights breaches.

Khadr's lawyers had asked for a judicial review of the government's decision not to request his repatriation. They argued that returning him to Canada would stop the violation of his human rights.

The lawyers alleged the violations were due in part to Canadian intelligence officials who interrogated him at Guantanamo Bay in 2003-04, knowing he had been repeatedly deprived of sleep, and passed the information on to U.S. officials.

The Federal Court of Canada had agreed and ordered the government to request his return in April 2009. A panel of the Court of Appeal upheld that ruling in 2-1 decision in August, prompting the government to appeal to the Supreme Court.

The Supreme Court decision doesn't prevent the government from voluntarily asking for Khadr's return. However, even if the government does make the request, there is no guarantee that U.S. officials would agree.

Justice Minister Rob Nicholson said the federal government is reviewing the decision before deciding on a course of action.

"The government is pleased that the Supreme Court has recognized the constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canada's broader interests," Nicholson said in a statement.

Nathan Whitling, Khadr's lawyer, said he didn't think Khadr would be surprised by Friday's ruling.

"He has never had a whole lot of hope in terms of the Canadian government, in any event," Whitling said.

Whitling said he doesn't expect further assistance from the Canadian government and the focus of Khadr's legal team will now shift to the trial proceedings.

Dennis Edney, another one of Khadr's lawyers, said he will be heading to Guantanamo Bay on Monday, where he will continue to negotiate with U.S. officials and inform Khadr of the ruling. Edney said that while he doesn't have faith in the Canadian government's conduct, he will try to give Khadr a more optimistic message.

"I will say that the court has the belief that ... the Canadian government has a moral conscience and will do the right thing," he said. "I will tell him, 'And that's what we have to pray and hope.'"

Meanwhile, Liberal Leader Michael Ignatieff said the ball is now in the government's court.

"The only thing it can’t do is to do nothing because the court clearly said that the rights of a Canadian citizen have been violated."

He added that the Liberals recognize that Khadr was a child soldier and had been calling for him to be brought back to Canada from the beginning.

But Edney said neither Stephen Harper's Conservative government nor the Liberal government before it did anything about Khadr's situation.

Human rights group Amnesty International echoed the opinion that the government has to respond to the ruling.

"It is not open to the Canadian government to just yawn and not take that seriously now," said Alex Neve, a spokesman for the group.

"There has to be an effective response that demonstrates that this government is prepared to stand up for rights of Canadians and is prepared to take seriously judgments of the Supreme Court of Canada, even if the court did not feel inclined to say specifically what the Canadian government has to do here."