Canada's top court orders partial access to Khadr transcripts

Defence lawyers for Guantanamo Bay prisoner Omar Khadr said Friday's Supreme Court of Canada ruling ordering Ottawa to grant limited access to confidential documents falls "far short" of what they hoped for.

Defence lawyers for Guantanamo Bay prisoner Omar Khadr said Friday's Supreme Court of Canada ruling ordering Ottawa to grant limited access to confidential documents falls "far short" of what they hoped for.

In a 9-0 judgment, the top court agreed that Khadr, a 21-year-old Canadian citizen facing murder charges in the U.S., has a constitutional right to documents held by Foreign Affairs, the RCMP and CSIS. The papers relate to interviews Canadian officials conducted with him during his detention at the U.S. naval base in Cuba.

However, the court rejected demands for additional documents held by Ottawa dealing with other parts of the case.

"Unfortunately, we think that the most important documents that Canada has, that we can't get anywhere else, we're not going to receive," Khadr's lawyer, Nathan Whitling, said outside the court.

"The remedy we got is far short of what we were hoping for."

The court ordered disclosure of all Canadian records of the interviews, whether or not they were passed onto U.S. authorities, including transcripts, recordings or summaries of the interviews.

But it also stated that information can be withheld on the basis of national security, causing concerns that the federal government could argue against the disclosure of more materials.  

Judge to sift through documents

A Federal Court judge will begin the process of assessing what parts of the documents can be passed into the hands of Khadr's lawyers by determining whether they "fall within the scope of disclosure obligations," the ruling states.

The judge will also consider whether disclosing the records could be "injurious to international relations" — a concern expressed by government lawyers — and can decide whether to release all information, parts of documents or a summary.

The defence team said it was pleased with part of the court's ruling, saying it backs up claims the Guantanamo Bay system violates Canadian and American obligations to protect fundamental human rights.

"They confirmed that the Canadian government has violated Mr. Khadr's basic human rights by participating in this system," Whitling said.

Khadr was captured during a fierce firefight in Afghanistan in 2002 and accused of throwing a grenade that killed a U.S. army sergeant.

Khadr was 15 at the time of his capture and since his arrest has been imprisoned at the U.S. naval base jail in Guantanamo Bay, Cuba, where he is awaiting trial by a military commission on charges of murder and war crimes.

Canada complicit in violating human rights: ruling

Friday's ruling states that the Guantanamo Bay system constitutes "a clear violation of fundamental human rights protected by international law," a finding that the court based on a U.S. Supreme Court decision that the prison infringes on detainees' rights against unlawful imprisonment.

Canada became complicit in that breach of human rights when it interviewed Khadr, then handed over transcripts to the U.S., the judges say.

"At that point, it became a participant in a process that violated Canada’s international obligations," the ruling states.

The government argued that the Canadian Charter of Rights and Freedoms did not apply to the conduct of Canadian agents operating outside the country.

But the top court found that because the Guantanamo Bay system was deemed to be in violation of international laws and conventions, U.S. law did not apply for Canadian agents interviewing Khadr at the prison and Canada's charter did.

Canadian officials were therefore found to have violated rights under the charter to disclose the documents.

Friday's ruling could have broad implications because information exchange between security officials in Canada and the U.S. has become commonplace in the post-9/11 era.

The court case stems from an appeal of an earlier federal court decision that ordered the Canadian government to release the documents to Khadr's lawyers.

Documents may outline details of Khadr's capture

Khadr's lawyer Whitling said earlier in the day that he doesn't know many details about the document he is requesting, but expects that one of the files will be a U.S. military report outlining what happened on Oct. 27, 2002, the day the Toronto-born Khadr was captured.

He said the U.S. military sent the document to the Canadian government to explain the reasons behind Khadr's transfer to Guantanamo Bay. Whitling asked the U.S. military for a copy, but was told the military no longer has it.

As a result, Whitling turned to Canada for the information.

"What happened that day [of the capture] is very much in doubt and very much in dispute," Whitling said.

"It's not at all clear that Omar did anything improper that day, threw a grenade or anything else. Every account of those events is very important, because they're all inconsistent, and it's the inconsistencies that show the weakness in the prosecution."

Lawyers for the Canadian government argued that releasing the files could jeopardize international relations and reveal classified information. They said that Canada doesn't have an obligation to hand over the files.