SCC to Hear Omar Khadr’s Case

Omar Khadr is the only Canadian citizen detained at the U.S. military prison in Guantanamo Bay, Cuba. Last week, the Supreme Court decided to hear the Crown’s appeal of a Federal Court of Appeal ruling that may provide Mr. Khadr with access to documents held by the Canadian government regarding the charges he faces before an American military tribunal. The Federal Court of Appeal’s ruling can be found here, Khadr v Canada (Justice), [2008] 1 FCR 270.


In 2002, he was captured by the U.S. army after he was found fighting against U.S. forces for a group linked to al-Qaida. He was only fifteen at the time. While the American government has fumbled in their attempts to deal with his case, he has spent the latter half of his teenage years locked up at the infamous American naval base in Guantanamo Bay, Cuba.

The allegations against Mr. Khadr are as serious as they come. He has been charged with conspiring with Osama Bin Laden himself, providing material support for terrorism, spying, attempted murder and the murder of an American soldier in violation of the laws of war. These charges carry a maximum sentence of life imprisonment, since the U.S. prosecutor has stated that they will not seek the death penalty.

Despite these serious allegations, the Americans did not initiate legal proceedings against Mr. Khadr until November, 2005. They charged him and five other Guantanamo prisoners, and ordered they be tried by a newly created Military Commission. However, in 2006, the United States Supreme Court struck down the commission in Hamdan v Rumsfeld, 415 F. 3d 33. The US Supreme Court found that the US Congress had not granted the government authority to set up the military commission. Furthermore, the US court found that the commission was illegal under the Uniform Code of Military Justice and the Geneva Convention.

In response to the Hamdan decision, the US Congress passed the Military Commissions Act of 2006 [MCA]. The MCA essentially provided the government with the legal foundation it required to set up military commissions. It authorized the Court of Military Commissions to be used to “facilitate and bring to justice terrorists and other unlawful enemy combatants.”

In February of this year, Mr. Khadr was charged to be tried by the military commission set up by the MCA. However, in June these charges were dismissed by Army Judge Col. Peter Brownback. The case was quite technical. Mr. Khadr was classified as an “enemy combatant,” not an “alien unlawful enemy combatant,” which Army Judge Col. Brownback read as a strict requirement of the MCA.

Last month, the Bush government was successful in their request to review Army Judge Col Brownback’s ruling. The Court of Review found that while the distinction between “enemy combatant” and “alien unlawful enemy combatant” is an important one, the military commission itself had the authority to determine the classification of a Guantanamo inmate. Mr. Khadr was re-classified as an “alien unlawful enemy combatant.”

For Khadr, the Court of Review’s decision means that he continues to face the charges laid against him in February, 2007. He has been ordered to appear in front of the commission on Nov. 8th, 2007.

The Case for the Supreme Court of Canada

The case the SCC has agreed to hear involves documents held by the Canadian government regarding Mr. Khadr. Shortly after he was detained, Canadian officials travelled to Guantanamo Bay to interview the young detainee about the events which led to the charges. Mr. Khadr’s counsel was not present during these interviews. After the visits, the Canadian officials compiled summaries of the information they collected, which were later shared with the RCMP and US authorities.

Mr. Khadr’s lawyers made an application under the Access to Information Act to receive copies these documents. Their request was partially granted and over 3,000 pages of documentation were passed to Mr. Khadr’s lawyers. However, much of the content in these documents was deleted or blacked out. The government justified this restriction on the basis of international relations, national defence and national security, and “specific public interest immunity” under s. 38 of the Canada Evidence Act.

Mr. Khadr’s lawyers made a further request, stating that R v Stinchcombe, [1991] 3 SCR 326, required the Crown to provide more information considering that the information would be relevant to the charges Mr. Khadr was facing in Guantanamo Bay. The Crown did not respond, so Mr. Khadrs lawyers filed an application for judicial review. They claim that the Canadian government has violated Mr. Khadr’s section 7 right to life, liberty and security of the person. The government has done so by withholding documents which are relevant to the charges Mr. Khadr faces at the US military commission. This action is inconsistent with the principles of fundamental justice because it has frustrated Mr. Khadr’s ability to make full answer and defence, thereby increasing the possibility that he may be wrongly convicted.

The initial application was dismissed by the Federal Court; however, that decision was overruled by the Federal Court of Appeal. The Crown appealed the Federal Court of Appeal’s decision granting Mr. Khadr’s request to the Supreme Court.

This case will compel the SCC to tackle many legal issues. They will have to determine whether the Charter applies in a case where the actions of Canadian officials have impacts on an accused being prosecuted by a foreign state. They will also have to determine if Mr. Khadr’s Charter rights have been violated and, if they find a violation, they will have to find an appropriate remedy.

That said, practically, this case also demonstrates the limits of law in helping Mr. Khadr receive a fair trial. The Supreme Court will not even hear this case prior to Mr. Khadr’s court date in Guantanamo Bay on November 8th, 2007. His fate under US law will likely be determined by the time the SCC reaches its judgment.

Perhaps the better solution lies in the political realm. In August, the President of the Canadian Bar Association, J. Parker MacCarthy, wrote a letter to Prime Minister Stephen Harper urging him to negotiate with the United States to have Mr. Khadr released to Canadian law enforcement. It cites the fact that the United Kingdom and Australia have acted to repatriate their detained citizens. The United Kingdom has also taken action to repatriate their permanent residents. While the Canadian government continues to rely on assurances from the United States that Mr. Khadr will receive due process, after over five years, it seems that bringing Mr. Khadr back to Canada to be tried would be the most effective way to ensure Mr. Khadr receives a just trial.

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9 Responses

  1. Great post, thanks for sharing. We’ll put a short note and link to you by the end of the day.

  2. concerned says:

    Perhaps Canada’s obligations under the UN Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict can be invoked to compel Canada to repatriate Khadr. It seems that Canada is clearly acting contrary to the principles enunciated in the preamble, particularly paras. 15, 16 and 17.

  3. steve clarke says:

    I am getting tired of seeing all the sympathetic articles and postings of Khadr the “terrorist” on our front pages. There are more deserving Canadian’s who are more news worthy than a common young terrorist that calls himself a Canadian to try to get sympathy. Canadian’s are multicultural but we do not welcome terrorists and I’m sure you will not find one citizen that is willing to support Mr. Khadr with their hard earned wages to support him as he rots deservingly in our prison. I applaud Steven Harper for letting American justice stand its course and hopefully he will be tried in the country he was in when he decided to take a life and receive the harsh punishment from their courts. As a Canadian I have sympathy for the soldier and his family not the killer. I believe that our specialists should be able to use any means necessary to keep our Country and law abiding citizens safe

  4. Mr. Clarke,

    You write as though Mr. Khadr has already been proven guilty, he hasn’t. Putting aside the violation of international law occasioned by the U.S.’s failure to treat this young man like a child soldier (which he was at the time given his age), and the serious flaws in the military tribunal process (as already recognized both by the U.S. Supreme Court and the Supreme Court of Canada), it is far from clear that he was in fact responsible for throwing the hand grenade that killed the U.S. medic that he is charged with murdering.

    In fact, if anything, the evidence that has so far emerged suggests that no one actually saw him throw the grenade and that, despite earlier reports to the contrary, he wasn’t the only person amongst the Taliban fighters still alive at the time.

    What is clear is that Mr. Khadr continues to languish in American custody nearly 6 years after he was first captured in Afghanistan. How long should Canadians wait for American justice to “stand its course”? Surely Omar Khadr has waited long enough.

    But assuming that you are right, that we should wait, given how flawed the military tribunal process is, how can we be assured that whatever verdict is arrived at is indeed the correct verdict. In other words, if we can’t rely on the fairness of the verdict then why should we be so willing to wait at all.

    The true test of our commitment to due process is how far we are prepared to go in defending the concept when the beneficiary is unpopular. I am saddened that many fellow Canadians, like you and our Prime Minister, aren’t prepared to go very far at all.

  5. T Ware says:

    Thank you Steve Clarke, it is about time someone says it. Canada has to get it together when it comes to feeling sympathy for people who come in our country live off of welfare, use our OHIP and then talk badly about our country and our way of life. Mr Omar Khadr’s sister has claimed on the radio 640 am that their father was doing charity work while over there. Give me a break, when are we going to open our eyes and see what the heck is going on. The mother said that the people that died in 911 deserved to die. That was quoted on the radio and now a year later they are denying it as they are afraid now of all the bad things they have been saying about our country as people are now talking about getting a petition together and having the family kicked out of the country. I am tired of all these people using our health care and living off our tax dollars. Go away and live over there and do your so called CHARITY work. PLEASE!

  6. T Ware,

    Why should our response to Omar Khadr’s unlawful detention depend on the public statements made by his sister and mother? If anything, the fact that his parents spewed such hatred counsels strongly in favour of showing him sympathy, not hostility. Seriously, what choices did he really have as a 15 year old boy growing up in that household?

    More importantly, irrespective of whether or not you are at all sympathetic toward him, doesn’t he deserve a fair trial? It sounds like you don’t think he does? Aren’t you at all concerned about carving out exceptions to longstanding principles that have served to mark both Canada and the United States as free countries?

    In our legal system, and in the legal system that existed in the United States before the Bush Administration used 9-11 as a license to subvert the Bill of Rights, everyone is entitled to a fair trial before an impartial tribunal.

    There is good reason to doubt both the fairness and impartiality of the military tribunal process, and hence compelling cause for Canada to intervene to assist one of its citizens.

    Of course, it sounds like you don’t feel the Khadr’s deserve the benefits of Canadian citizenship at all because of their perverse political views. Thankfully, in Canada at least, citizens cannot be expelled because they hold or express unpopular or even offensive points of view.

    Tolerating the Khadr family is a small price to pay for living in a free society. I know you wish for something different, but you should really think long and hard about the kind of country we would live in if Canadians could be petitioned out of the country.

  7. I agree with the above comment. There seems to be a striking tendency in much of the popular discourse surrounding Mr. Khadr to presuppose his guilt then, on this assumption of guilt, assert that the heinousness of his crimes is such that he is undeserving of his s. 11 and other Charter rights.

    Leaving aside the disturbing notion that a person’s Charter rights could be allowed to hinge on an visceral, uncritical pre-trial assessment of guilt or innocence, the most cogent way that a democracy can address an alleged terrorist threat is by subjecting that threat to the glow of judicial and public scrutiny. In the face of such a threat, a healthy democracy redoubles, not abandons its commitment to rule of law.

  8. Hypocrisy of the “Repatriate Omar Khadr to Canada” Movement

    As soon as the Gitmo interrogation tape of Omar Khadr hit the Internet, the blogosphere was flooded with demands to repatriate him to Canada. This wave is reminiscent of a Soviet campaign to free Luis Corvalán from the “fascist regime” of Augusto Pinochet thirty five years ago. The scenario is strikingly similar. A “victim” held by “fascist regimes” this time run by Bush and Harper, and a public outcry for justice. Except for the fact that Luis Corvalán didn’t kill anyone and didn’t fight for a terrorist group that wants to impose Sharia.

    The “repatriate Khadr” crowd describes him as “a child”, “a kid”, “a boy”, and even “a torture victim”, with no facts to substantiate the torture claims notwithstanding. They complain about Khadr being mistreated, again, without anything to back up their claims. Some of them are outraged about “child abuse.” And they all scream for justice.

    They want justice? OK, let’s talk about JUSTICE. What about justice for Sgt. First Class Christopher J. Speer, who was (according to an eyewitness) murdered by this “child”? What about justice for Tabitha Speer, who is a widow because of this “kid”? What about justice for Taryn and Tanner Speer, who are left without a father by this “a boy”? And what about all those Afghani civilians and NATO troops who are a little bit safer because this “torture victim” is behind bars? How many of these “repatriate Khadr” hypocrites concern themselves with justice for real victims? In literally hundreds of posts, we couldn’t find a single one.

    One would ask, what is the reason for this idiocy? The answer is simple. Ignorance. Complete and utter ignorance. Let’s forget for a second that Omar Khadr killed Christopher Speer. Let’s forget that Khadr’s father was an al Qaeda financier. Let’s forget that Khadr’s family is known for it being al Qaeda sympathizers. Let’s just remember what this “child” was fighting for in Afghanistan.

    This is what Taliban-imposed Sharia looks like in real life:

    Why don’t all of you, bleeding heart demagogues go to Afghanistan and spend a day in a Taliban-controlled territory? And let’s talk about Khadr when you get back. If you get back.

  9. Diana Younes says:

    There seem to be two conversations happening in this comment section. One is about Omar’s legal rights and treatment, the other about his ‘foreignness’, ‘outside status’, ‘immigrant status’, etc…

    There is a terrible myth about new immigrants living ‘off’ ‘our’ welfare system and ‘abusing’ our health system capacities. The unacknowledged fact is that new immigrants pay the most for these services. I won’t be surprised if some of the authors above do not know that new immigrants are obliged to pay administrative immigration fees (can get up to 2700 for a family of 4) (right of residence fee alone is $490.00) (visit for all fees), that some immigrant classes gain entry to Canada on the condition of establishing a business and hiring a minimum of one Canadian employee (business entrepreneur), or that other immigrants who are migrant workers perform low paying jobs that most ‘canadians’ are not willing to perform. Migrant workers can be subject to collective expulsions, are not allowed family members’ reunification, are not granted citizenship and have diminished social and economic rights and minimum access to health care.

    Further to this mess, the Canadian government position in regards to recognizing foreign earned degrees places new immigrants at a grave disadvantage and forces a majority of them into low paying occupations (note for example how Toronto taxi cabs are some of the most highly educated drivers than any other place. Next time you take a cab, there is a good chance the driver is a doctor or engineer).

    As for the petition to kick someone out of the country, the commentator is very likely to be among the list if all non-natives are to leave. With what license can one feel entitled to pick and choose who stays and who goes? People in Canada are either Aboriginal/First Nations or immigrants (whether descendants of or new) and it is only right to approach the issue of Canadian immigration with humility and recognition of one’s past and Canada’s past.

    Furthermore, conflating the discussion of Omar Khadr’s legal case with his immigration status reveals a discriminatory position and does not even qualify as an argument. Whether someone is born on this land or migrates to it should not affect their rights and obligations under the law. That is the very basis of the concept of legal equality. If you advocate that someone’s ethnic background, sexual orientation, or gender be invited to qualify their legal rights, then you are putting yourself in a very specific category of people; the kind of people who are punished under the Criminal Code of Canada with maximum terms of two to fourteen years! Revise R. v. Keegstra for your nightly read.

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