Omar Khadr would face numerous bail restrictions if released

If Omar Khadr is released on bail Thursday, he will have to wear a monitoring device and will face several conditions that restrict everything from his internet use to visits with his family.

Federal Crown, defence spent morning arguing cases for and against release of Canadian convicted of war crimes

Alberta Court of Appeal Justice Myra Bielby said she will make her decision Thursday on whether Omar Khadr will be released on bail. (Jennifer Smith)

If Omar Khadr is released on bail Thursday, he will have to wear a monitoring device and will face several conditions that restrict everything from his internet use to visits with his family.

Bail conditions were set during a lengthy hearing in an Edmonton courtroom on Tuesday afternoon. Earlier in the day, Alberta Court of Appeal Justice Myra Bielby heard arguments from Khadr's defence lawyers and from a federal prosecutor seeking a stay of a lower court decision that granted Khadr bail last week. 

Bielby said she will make her decision Thursday on whether to grant the stay.

If he is granted bail, Khadr would have to keep the peace and be of good behaviour, and inform a supervisor about any education or employment. He would have to continue counselling and would live with his lawyer Dennis Edney under a curfew from 10 p.m. to 7 a.m.

Interaction with his family could only be made by telephone or video conference, and they would have to speak English and be supervised. Any face-to-face visits with his family could only happen with prior written approval from a supervisor.

Khadr would be prohibited from any communication, directly or indirectly, with any member of a terrorist group. He could not apply for a passport, and his internet access would be limited and monitored.

He would have to wear an electronic monitoring device, though the judge said that condition could be reviewed over time.

Edney said Tuesday he was disappointed his client will have to wait until Thursday to hear whether he will be freed on bail.

"I'd like to grab him, throw him in the car, take him home," Edney said outside court. "My wife has been preparing dinner for tonight."

Khadr appeared relaxed during hearing

During the earlier hearing on Tuesday morning, Khadr, 28, smiled frequently and appeared relaxed while seated in the prisoner's box.

Federal Crown prosecutor Bruce Hughson argued that granting Khadr bail while he appeals his war crimes convictions in the United States would threaten the entire system of international prisoner transfers, and said the resulting harm to Canada would be "significant and far reaching."

"This is a high-profile case that has garnered not only national, but international attention," Hughson said. "The risk to Canada's prison transfer system is clearly set out in the affidavit."

Hughson said if the case becomes "notorious," others prisoners will try to copy what Khadr has done.

Bielby said the $64,000 question was, "How many other prisoners are we talking about?"

Khadr called 'model prisoner'

Hughson said that would require speculation. He did not challenge the idea that Khadr has been a "model prisoner," but insisted it would be better to gradually release him after almost 13 years in prison. 

Nate Whitling, also acting for Khadr, called the case unusual, and said "the floodgates will not open" if his client is released.

He said the government's argument that Canada will suffer irreparable harm is "speculative," because no other prisoner faces the same situation.

Correctional Services Canada official Lee Redpath told court that out of 650 Canadian prisoners transferred here, and about 300 more awaiting transfer, none has a pending right to appeal similar to the Khadr case.

According to legal precedent, there has to be clear evidence of risk of irreparable harm, Whitling said. 

When Redpath could not say exactly how Khadr's release could affect Canada-U.S. relations, Whitling called the risk speculative and not enough to meet the burden of proof.

Whitling told the court there has never been any evidence from the U.S. or other foreign governments that there is concern about Khadr's release on bail.

'Smoke and mirrors'

After the hearing, Edney said he was reluctant to criticize the government's case before Bielby's decision Thursday, but told reporters outside of the courthouse the argument "was all smoke and mirrors."

"They want to drag it out even more. Why? Just because they can't stand seeing that young Muslim boy out there — and the government and the public will get to see the real person that he is."

Born in Toronto, Khadr was 15 years old when he was captured by American soldiers in Afghanistan in July 2002. He spent nearly 10 years in a U.S. military prison in Guantanamo Bay, Cuba.

In 2010, he pleaded guilty to five war crimes — including the murder of an American special forces soldier — before a widely discredited U.S. military commission. He has insisted he only pleaded guilty to war crimes to get out of Guantanamo Bay.

Khadr was transferred in September 2012 to the Millhaven Institution, a maximum-security prison, in Bath, Ont. He was later transferred to Alberta, where he was incarcerated as a minimum-security inmate at Bowden Institution near Innisfail.

Court was told Tuesday a recent psychological assessment rated Khadr as a "low to moderate risk" to reoffend.

On Nov. 13, 2014, Khadr filed an appeal of his war-crimes conviction in the United States.

He has a parole board hearing set for June 25.

With files from Janice Johnston and Briar Stewart


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