Canada’s attitude towards Khadr remains unclear

Omar Khadr has fought and is fighting many battles, and one such has been in his country – suing Canada for interview records that the Canadian authorities conducted with him in Guantanamo Bay and handed to the U.S. authorities. The Supreme Court of Canada – allowing great reservations to those ever-so-illusive national security concerns – held for Mr. Khadr in Canada v. Khadr 2008 SCC 28, but limited the disclosure to interview records and not all information relevant to the charges against him as argued by his attorneys. The judgment in effect found for a duty to disclose under s. 7 of the Charter.

To reach this finding, the judges had to override the principles of international law and comity of nations, which limit the application of Canadian law on Canadian officials working abroad in an effort to portray their acceptance of foreign law and procedures. In order to do so, the Supreme Court utilized the exception noted in R. v. Hape 2007 SCC 26. The idea in Hape is that “comity cannot be used to justify Canadian participation in activities of a foreign state or its agents that are contrary to Canada’s international obligations” [para 18].

In what can only be speculated as a calculated move, our Supreme Court utilized two U.S. Supreme Court decisions that proclaimed the detention and trial processes in Guantanamo Bay illegal and contrary to the Geneva Conventions (Rasul v. Bush, 542 U.S. 466 (2004), and Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006)). As such, the Canadian agents interviewing Mr. Khadr were found to be at the time involved in a process that was contrary to Canada’s international obligations. This analysis led the Court to apply the Charter and find a duty on Canada to disclose the evidence sought.

The result was positive to the particular questions asked by Mr. Khadr’s attorneys. However, the judges chose a uniquely minimalist approach that has been remarkable in cases that relate to “terrorism,” which by now, let’s all admit, means discussing the United States and its wars, disregard and contempt for the international law of war. Two particular observations point to the fact that our Supreme Court judges did not want to go there. First is the total reliance, without much explanation, on the decisions pronounced by the U.S. Supreme Court on the legality of the Guantanamo Bay detention and trial processes. Second is the intentional choice of one moment to indict Canada and its agents and that was only when Canada materially and unquestionably ‘participated’ with the American defunct process in Guantanamo.

In regards to the first point, it is worth mentioning that the ruling noted that “[i]ssues may arise about whether it is appropriate for a Canadian court to pronounce on the legality of the process at Guantanamo Bay under which Mr. Khadr was held at the time that Canadian officials participated in that process” [para 21]. However, the judges ruled they need not resolve those issues in this case. Instead, they referred to the American cases that are so apparently limited to the time of their release. The Canadian Supreme Court effectively closed the doors to any current investigation of the conditions of Mr. Khadr’s detention and trial. Any such inquiry would open up the door to asking the more urgent broad question: what are Canada’s obligations to Mr. Khadr? And what is the role of the Canadian Supreme Court in identifying and pursuing justice for Mr. Khadr?

The second point shows the general hesitation to outline (and consequently condemn) all of Canada’s role in Mr. Khadr’s case. The choice to condemn the Canadian activity only at the time of the interviews limits and obscures Canada’s role in Khadr’s ordeal. The narrative portrays the Canadian involvement as one marked by touch-down, when the agents landed in Guantanamo and conducted the interviews. Intelligence gathering and sharing, the kind that led to Maher Arar’s ordeal, and the trend to disregard civil liberties and legal procedure in the face of the faceless threat of terror, is declared a national security concern – and according to this judgment is to be left unscrutinized. This approach demonstrates a lack of interest or will to explore and judge the Canadian overall involvement with U.S. security agencies.

Without an investigation into the current detention and trial conditions of Mr. Khadr and a full account of Canada’s involvement, the main question remains unanswered as to what is Canada’s attitude towards someone in Mr. Khadr’s position. The Supreme Court had the opportunity to make larger connections between diminishing civil rights and the fight on “terror,” which necessarily requires discussing the United States and Canada’s relationship to American laws and processes. The Supreme Court could have acted like a moral compass that pushed for repatriation and opened the discussion for any other duties to be found for Mr. Khadr. Instead they decided to mitigate for the Canadian agents’ disregard to human rights by merely disclosing documents that would have been available for any defense counsel on Canadian soil anyway.