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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