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OTTAWA — The Supreme Court has confirmed Canadian officials violated Omar Khadr’s constitutional rights, but the judges left it up to the federal government whether to ask the United States for his return to Canada.
Khadr, 23, is being held by the Americans at Guantanamo Bay, Cuba, for allegedly throwing a grenade that killed a U.S. soldier in Afghanistan more than seven years ago.
The landmark decision is bound to renew debate over whether Khadr can receive a fair hearing in the U.S. military justice system.
The Conservative government strongly opposes Khadr’s repatriation, but his lawyers and several interested groups argued before the high court that Canada should request his return.
Khadr’s captors threatened the Toronto-born teen with rape, isolated him and deprived him of sleep by moving him from cell to cell — a practice known as the “frequent flyer program.”
The Supreme Court unanimously said Friday that Khadr’s constitutional rights were violated.
“The appropriate remedy is to ... leave it to the government to decide how best to respond to this judgment in light of current information, its responsibility for foreign affairs, and in conformity with the Charter,” said the court.
While not advising a particular course of action, the judges said “the remedy sought (requesting Khadr’s return) could potentially vindicate those rights.”
Alex Neve, secretary general of Amnesty International Canada, called the decision “a very strong ruling on the human-rights front” and said he sees no other remedy but to ask for Khadr’s repatriation.
The Federal Court of Canada ruled last April that the Conservative government must ask the United States to return Khadr “as soon as practicable.”
The Federal Court of Appeal rejected the government’s bid to overturn the decision, saying the conduct of Canadian officials who interviewed Khadr in 2004 amounted to “knowing participation” in his mistreatment.
The Supreme Court said Friday that Canada took part in conduct that violates Khadr’s guarantee of fundamental justice under the Charter of Rights.
The court said the interrogation of the teenage Khadr offended “the most basic Canadian standards” about the treatment of young detainees.
“We conclude that Canadian conduct in connection with Mr. Khadr’s case did not conform to the principles of fundamental justice,” it said.
“Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.”
Friday’s decision follows a one-day hearing before the high court last November that highlighted the deep and often emotionally charged differences over Canada’s role in Khadr’s treatment.
In February and September 2003, officials from the Canadian Security Intelligence Service and Foreign Affairs questioned Khadr at Guantanamo and shared the results of their interrogations with the Americans.
Foreign Affairs interviewed him again in March 2004 knowing he had been subjected to the frequent flyer treatment.
The appeal court said the principles of fundamental justice do not permit the questioning of a prisoner to obtain information after he has been subjected to cruel and abusive treatment to induce him to talk.
The government has consistently said U.S. military tribunal proceedings initiated against Khadr in 2004 must be allowed to play out.
The Khadr family has gained notoriety for apparent long-standing ties to al-Qaida leader Osama bin Laden.
Omar’s late father, Ahmed Said Khadr, was a purported extremist and financier for bin Laden’s terror network. A brother, Abdul Karim, was paralysed by wounds suffered in the fire fight that killed his father. 10:52ET 29-01-10