Not even arguing the science

By Aaron Wherry - Friday, May 13, 2011 at 1:40 PM - 60 Comments

Whatever Tony Clement has said about the “evidence”—and whatever value you are supposed to place on Mr. Clement’s public pronouncements—the government’s lawyers managed to concede during yesterday’s Supreme Court hearings that Insite has worked.

Federal lawyer Paul Riley conceded health ministers allowed it to operate from 2003-2008 following a wave of deaths in the 1990s “to permit a scientific study of the nature of that program as a question of policy.” 

“And it worked,” interjected Chief Justice Beverley McLachlin. She cited the trial judge’s findings based on research showing addiction is an illness; unsanitary equipment is linked to infections and disease, and risk of death is lessened by supervision of qualified health professionals. “Lives are being saved, diseases are being prevented by this site, and are we putting too fine a point on it by saying the site has nothing to do with it?” McLachlin said.

“In the end this program somehow, while not being perfect, works,” said Justice Louis LeBel. “Have you got anything that tends to demonstrate that this program doesn’t work?”

Riley stammered in reply: “I think that’s a fair observation.”

Supreme Court rules PM's agenda may be kept private

By macleans.ca - Friday, May 13, 2011 at 1:01 PM - 1 Comment

In a landmark unanimous ruling issued on Friday, the Supreme Court decided the Canadian public does not have the right to access sensitive information held by public officials like the prime minister and cabinet ministers. The ruling, written by Justice Louise Charron, held that such an expansion of the Access to Information Act “can only be achieved by Parliament.” The decision followed the rejection of requests by opposition politicians and the media for access to minutes, agendas, e-mails and day timers that related largely to former prime minister Jean Chrétien’s use of government aircraft, and to high-level national defence meetings.

The Globe and Mail

Thunder Bay goes to the dogs

By macleans.ca - Thursday, February 10, 2011 at 4:03 PM - 2 Comments

British Columbia: A class-action lawsuit has been filed in the B.C. Supreme Court on behalf of Canadian men who claim to have experienced prolonged sexual dysfunction after taking medications to prevent baldness. Merck Frosst Canada and its affiliated companies, which market hair-loss drugs such as Propecia and Proscar, are the targets of the suit, launched by a Vancouver man.

Manitoba: A former inmate of the federal Stony Mountain Institution is suing Ottawa. He alleges that prison staff didn’t intervene immediately during a riot in which he was injured. The Brandon, Man., man’s lawsuit states that during the January 2009 violence, he was stabbed multiple times and beaten, resulting in permanent disabling injuries.

Ontario: A Thunder Bay family has filed a statement of claim against a dog owner and the city after their dog, a chihuahua mix, was allegedly attacked and killed by a pit bull mixed breed. The $49,000 claim alleges the city was negligent in its supervision of the park’s off-leash area and the other dog’s owner did not properly supervise the animal.

Quebec: A Concordia University student, who failed to win a $15-million lawsuit against the school in 2007 after being expelled for plagiarism in 2004, is taking Concordia to court again. He wants the Quebec Superior Court to order the university to grant him a new disciplinary hearing on the plagiarism charges, which he failed to do in his previous case, and he alleges that he was expelled due to “discriminatory motivated ‘errors’ committed by his professors with respect to his grades.”

Nova Scotia: A P.E.I. man has launched a lawsuit in the Nova Scotia Supreme Court against Cheers and its staff for injuries he allegedly sustained while being escorted out of the Halifax bar. The man claims that a man “threw or shoved him a distance of approximately five feet onto the pavement,” causing his skull to fracture in three places. Statements of defence have not been filed.

Votes from the big house?

By Kate Lunau - Thursday, November 4, 2010 at 12:20 PM - 0 Comments

Getty Images

In November’s mid-term elections, more than five million Americans won’t be eligible to vote. Most states prohibit jailed felons from casting a ballot (Maine and Vermont are exceptions), but laws in different jurisdictions can prevent those who’ve served their time from doing so as well. In Virginia and Kentucky, for example, anyone convicted of a felony is barred from voting for life.

Last week, the Supreme Court turned down an appeal from Massachusetts inmates who argued the law amounted to racial discrimination (blacks and Hispanics are jailed at disproportionate rates). And a federal appeals court recently upheld Washington state’s ban on allowing inmates to vote. But there are signs of change. According to a new report from the non-profit Sentencing Project, 23 states have changed their policies since 1997, returning 800,000 ex-cons to the voter rolls. And a bill pending in Congress would restore the vote to about four million former inmates.

Nicole Porter, who authored the report, says that in the U.S., “depending on where you are, your relationship to democracy can be very different.” But just as the social contract holds each person accountable for his actions, “the other end of that contract should be that all adults have opportunity to decide who represents them.”

Judging the judge in Conrad Black’s appeal

By Nancy Macdonald - Monday, August 30, 2010 at 12:20 PM - 0 Comments

Robyn Twomey/Corbis/ John Gress/Reuters

Richard Posner is famous, in legal circles, for a rare act of judicial insolence. In an antitrust ruling more than a decade ago, the appeals court judge wrote an opinion mocking a controlling U.S. Supreme Court precedent as “wobbly,” “moth-eaten,” and “unsound.” The high court’s response was even more surprising: they rolled over and unanimously struck the precedent. They even congratulated him.

Until recently, few in Canada had heard of Posner, a judge who has written some 53 books and who is widely considered one of America’s top legal minds. But from his perch at the U.S. Federal Court’s Seventh Circuit, Posner is once again considering Conrad Black’s case, after the Supreme Court returned it to the appellate panel. Black’s fate now rests largely with a man who has shown him no sympathy in the past—a judge who once described himself as “cold, furtive, callous,” with a cruel streak.

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'After careful consideration'

By Aaron Wherry - Monday, July 12, 2010 at 3:20 PM - 0 Comments

In not-at-all surprising news, the government will appeal last week’s Federal Court ruling on Omar Khadr.

“After careful consideration of the legal merits of the July 5, 2010, ruling from the Federal Court, the Government of Canada will appeal the decision to the Federal Court of Appeal.

“This case raises important issues concerning the Crown prerogative over foreign affairs. “As the Supreme Court of Canada ruled in an earlier case involving Mr. Khadr, ‘it would not be appropriate for the Court to give direction as to the diplomatic steps necessary to address the breaches of Mr. Khadr’s Charter rights.’ “Omar Khadr faces very serious charges, including murder, attempted murder, conspiracy, material support for terrorism, and spying. The Government of Canada continues to provide consular services to Mr. Khadr.”

The business of Guantanamo, meanwhile, is proceeding as smoothly as ever.

'The steps taken to date were found not to remedy the breach'

By Aaron Wherry - Monday, July 5, 2010 at 3:53 PM - 0 Comments

The federal court rules on a review of the government’s response to the Supreme Court’s ruling on the treatment of Omar Khadr.

Omar Khadr sought judicial review of Canada’s response to the Supreme Court of Canada’s declaration in Canada (Prime Minister) v. Khadr (2010) that Canada had breached his Charter rights.  Canada responded by deciding that it would continue to refuse to request his repatriation from Guantanamo Bay, Cuba, and by requesting, by way of diplomatic note, that the United States not use any of the information Canada had supplied it in its prosecution of Mr. Khadr.

The Court concluded that Canada’s decisions were amenable to judicial review, even though they involved the executive’s exercise of a royal prerogative, because they affected the rights and legitimate expectations of Mr. Khadr.  The breach of his rights remained ongoing and the Court concluded that he had a legitimate expectation, following the Supreme Court of Canada’s declaration, that Canada would take steps to remedy its breach.  The steps taken to date were found not to remedy the breach.

The full ruling is here.

Does last week’s Supreme Court ruling vindicate Conrad Black?

By macleans.ca - Tuesday, June 29, 2010 at 2:35 PM - 20 Comments

A bilingual Supreme Court? C'est pas si simple.

By Philippe Gohier - Wednesday, April 28, 2010 at 6:36 PM - 61 Comments

I haven’t seen a single mention of this interview with former Supreme Court Justice Claire L’Heureux-Dubé by those weighing into the debate over a law that would force nominees to the Supreme Court to be bilingual. While John Major’s opposition to the bill has been amply cited, L’Heureux-Dubé’s support for it has gone virtually unnoticed in the English media. And yet, her statements undercut one of the core arguments against the law—namely, that it’s a solution in search of a problem:

Mrs. L’Heureux-Dubé notes that that during the judges’ deliberations, no interpreter is present, and the presence of a unilingual judge at the table forces everyone else to defend their point of view in his or her language, most often English.

The former judge added that the presence of a unilingual Anglophone occasionally requires Francophone judges to write in English because the time needed for translations delays judgements.

Turns out the status quo does require substantial trade-offs, all of them borne by the Francophones on the Court. The benefits of having fluently bilingual judges are not simply “symbolic” as Dan Gardner describes them. (Gardner is hardly alone in opposing the law but, in his habitual way, he’s made the most lucid and compelling case against it, which is why it stuck with me.) In the case of deliberations, a fully bilingual Court would mean Francophone judges could defend their points of view in their first language rather than default to English. That alone amounts to a substantial change in process, never mind what impact it might have actual rulings.

Gardner also points to a laundry list of appointments that wouldn’t have happened had the Official Languages Act been extended to cover the Supreme Court—Bora Laskin, Brian Dickson, Bertha Wilson. Indeed: if things were different, they wouldn’t be the same. As Chantal Hébert points out, if Lester Pearson or John Diefenbaker were running for election today, they probably wouldn’t stand a chance of becoming prime minister until they learned some French. But what’s that got to do with whether things ought to be different?

Besides, it’s equally true that if Antonio Lamer had been born in, say, Port-Cartier or Rimouski, he probably would’ve been a unilingual Francophone and therefore unable to function in the Supreme Court L’Heureux-Dubé describes or, for that matter, the one Yvon Godin is proposing. More than two-thirds of Quebec’s bilingual population lives in either Montreal or Quebec City, and even a place like Trois-Rivières, which sits right smack in the middle of the two, has a population that’s 74 per cent unilingual Francophone. So while the current system allows for English Canadians born outside major cities to accede to the Supreme Court, the same can’t be said for rural Quebecers. (The results bear it out, too: most appointees from Quebec were born in either Montreal or Quebec City.)

All of which isn’t to say that a pool of potential jurists already diluted by regional, political or other considerations wouldn’t become impossibly so if bilingualism were added to the list. It’s just to point out that, far from being free of linguistic compromises, for the Supreme Court to keep functioning the way it does now requires at least three things: the tacit acceptance by Quebec’s unilingual Francophone majority that no one from its ranks will ever be appointed; a steady stream of suitable, bilingual jurists from Quebec; and an implied agreement among those on the Court that the closed-door business that happens without the aid of interpreters will take place in English. Do any of these conditions amount to an undue burden? Probably not, though L’Heureux-Dubé thinks they do. Still, that hardly makes them unsubstantial.

Should Supreme Court judges have to be perfectly bilingual?

By macleans.ca - Monday, April 26, 2010 at 2:44 PM - 55 Comments

Gaming it out

By Aaron Wherry - Thursday, April 22, 2010 at 1:47 PM - 79 Comments

Susan Delacourt wonders if the detainee document question currently being contemplated by the Speaker won’t ultimately end up with the Supreme Court.

[REDACTED] I wonder—without, mind you, having yet consulted anyone who knows about such things—whether the Supreme Court, in a scenario like the one I referred to a couple of weeks ago, might then pass it on to the Governor General. And then I wonder who the Governor General will be by then. And then I wonder whether we’d all be comfortable with Wayne Gretzky making that decision. [REDACTED]

After thinking about what I wrote here for a bit—Parliament refers the matter to the Supreme Court, Supreme Court refers it to the Governor General, that Governor General is Wayne Gretzky, the whole matter is settled in a shootout—I’m less convinced of my own fanciful theorizing. Apologies. I’ve referred the matter to a more learned mind.

In the meantime, you can review the Supreme Court’s decision in New Brunswick Broadcasting Co. v. Nova Scotia. Neil Morrison has already noted the irony as it applies to this particular predicament.

Over to you, Mr. Obama

By Aaron Wherry - Tuesday, February 16, 2010 at 6:18 PM - 47 Comments

The Justice Minister formally responds to the Supreme Court’s decision on Omar Khadr.

“In its ruling, the Supreme Court recognized the constitutional responsibility of the executive to make decisions on matters of foreign affairs, given the complex and ever-changing circumstances of diplomacy, and the need to take into account Canada’s broader interests. The Supreme Court did not require the Government to ask for accused terrorist Omar Khadr’s return.

“In response to the Supreme Court’s ruling, the Government of Canada today delivered a diplomatic note to the Government of the United States formally seeking assurances that any evidence or statements shared with U.S. authorities as a result of the interviews of Mr. Khadr by Canadian agents and officials in 2003 and 2004 not be used against him by U.S. authorities in the context of proceedings before the Military Commission or elsewhere.

“Omar Khadr faces very serious charges, including murder, attempted murder, conspiracy, material support for terrorism, and spying. The Government of Canada continues to provide consular services to Mr. Khadr.”

'If he says no then we have contempt of Parliament'

By Aaron Wherry - Wednesday, February 3, 2010 at 4:22 PM - 133 Comments

The Canadian Press, Globe, Star, CBC and CTV report from today’s unofficial hearings of the Afghanistan committee. The Star’s Allan Woods wraps the day’s discussion thusly.

Mendes, one of the country’s top constitutional scholars, said Parliament’s power exceeds that of the various national security laws that have been used to censor government memos and diplomatic cables describing who was warned about possible war crimes violations going back to early 2006, when Canadian soldiers moved to Kandahar province.

That leaves MPs with two paths forward: they can ask the Supreme Court of Canada to rule on their right to access the information, a process that could take years; or they can invoke a rarely used power to censure, expel and even imprison any member of the House of Commons for contempt…

Opposition MPs are taking the advice seriously and will decide in the coming weeks how to move ahead.

Over to you, Mr. Nicholson

By Aaron Wherry - Wednesday, February 3, 2010 at 2:46 PM - 28 Comments

Lawrence Cannon, appearing in the National Press Theatre just now, asked specifically about the Supreme Court’s latest ruling on the human rights of Omar Khadr.

I would remind you that there is a process in place, Mr. Obama’s government has put a process in place, and our position with regard to the process that has been undertaken by the American government … we are following that process. And with regards to the decision that was made by the Supreme Court, the minister of justice is analyzing that ruling and once the minister of justice has communicated what process he intends to take, we will share that.

Over to you, Supreme Court?

By Aaron Wherry - Wednesday, February 3, 2010 at 12:28 PM - 102 Comments

While apparently still reviewing the court’s decision, the government apparently remains firm in its refusal to request Omar Khadr’s repatriation.

Obama takes it on the chin

By Luiza Ch. Savage - Wednesday, February 3, 2010 at 11:30 AM - 6 Comments

It was supposed to be a week to celebrate Barack Obama’s first anniversary of bringing hope and change to the White House. Instead, thanks to Massachusetts voters, the Supreme Court, and even members of his own party, the past week was arguably the worst of his presidency, leaving him and congressional Democrats scrambling to pick up the shards of their policy agenda and electoral futures, in a political landscape that was suddenly transformed.

The loss of a special election in the largely Democratic state of Massachusetts to replace the late Ted Kennedy, the Senate’s liberal lion, was a humiliation for Democrats and a wake-up call about the depths of dissatisfaction in the country. A little-known Republican state legislator, Scott Brown, who ran as a truck-driving everyman opposed to the Democratic agenda in Congress, handily defeated the state’s Democratic machine candidate, state Attorney General Martha Coakley, on Jan. 19. That loss held an urgent lesson for every Democrat whose seat is up for re-election this November: the same independent voters who swept Obama into office in 2008 have turned against the President’s party. “I think the Massachusetts voters were saying what the voters of ’06 said and voters of ’08 said. Our country is not working right. We want you to change it,” said the House majority leader, Steny Hoyer, in the aftermath.

Continue…

Over to you, Mr. Harper

By Aaron Wherry - Tuesday, February 2, 2010 at 12:39 PM - 18 Comments

As Kirk Makin explained over the weekend, the Supreme Court’s ruling last week on Omar Khadr is something less than a conclusion to the story. Today, Audrey Macklin, Diana Juricevic and Cheryl Milne lay out what it may all mean.

Does this mean that Prime Minister Stephen Harper has won the court’s permission to continue to do nothing? The answer is no … In declining to mandate the executive to take specific steps, the court indicated that the “prudent course at this point” was to give the executive the opportunity to formulate a remedy that fulfills its Charter obligations. However, if the government spurns the opportunity, we may arrive at a different point. A declaration, once issued by a court, is always open to enforcement. Should the violation of Mr. Khadr’s rights go unremedied, the Canadian government will continue to be in violation of the law. It will remain open for Mr. Khadr’s lawyers to return to court at a later date and renew a request for a remedy on the grounds that the circumstances animating the court’s deference have changed, and judicial deference is no longer warranted.

Bad news for Omar Khadr? Sort of

By Michael Friscolanti - Friday, January 29, 2010 at 5:47 PM - 182 Comments

When Omar Khadr eventually returns to Canada (and he will someday, whether his fellow Canadians like it or not) his triumphant press conference won’t include a special thanks to the Supreme Court. In a unanimous decision released Friday, the country’s senior judges struck down Khadr’s latest bid for freedom, ruling that Prime Minister Stephen Harper cannot be forced to ask the United States to repatriate al-Qaeda’s most famous child soldier. Simply put, the court concluded that elected officials, not judges, are in charge of our country’s foreign policy—including whether or not to go to bat for a Toronto teenager who lived with Osama bin Laden, allegedly killed a U.S. soldier on the battlefields of Afghanistan, and has spent the past seven years locked inside the notorious prison at Guantanamo Bay, Cuba, where he has clearly been mistreated, if not brutally tortured.

Continue…

'The Government is pleased'

By Aaron Wherry - Friday, January 29, 2010 at 3:10 PM - 11 Comments

Rob Nicholson’s office releases a statement in regards to the Supreme Court’s decision.

“The Government is pleased that the Supreme Court has recognized the ‘constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canada’s broader interests.’ The Supreme Court overturned two previous lower court decisions and ruled that the Government is not required to ask for accused terrorist Omar Khadr’s return to Canada. Omar Khadr faces very serious charges including murder, attempted murder, conspiracy, material support for terrorism, and spying. The Government will carefully review the Supreme Court’s ruling and determine what further action is required.”

The Khadr verdict

By Aaron Wherry - Friday, January 29, 2010 at 10:02 AM - 197 Comments

The Supreme Court has ruled that Omar Khadr’s rights have been violated, but that the Court will not, at this time, order the federal government to request his repatriation. The full ruling is here.

K is entitled to a remedy under s. 24(1) of the Charter.  The remedy sought by K — an order that Canada request his repatriation — is sufficiently connected to the Charter breach that occurred in 2003 and 2004 because of the continuing effect of this breach into the present and its possible effect on K’s ultimate trial.  While the government must have flexibility in deciding how its duties under the royal prerogative over foreign relations are discharged, the executive is not exempt from constitutional scrutiny.  Courts have the jurisdiction and the duty to determine whether a prerogative power asserted by the Crown exists; if so, whether its exercise infringes the Charter or other constitutional norms; and, where necessary, to give specific direction to the executive branch of the government.  Here, the trial judge misdirected himself in ordering the government to request K’s repatriation, in view of the constitutional responsibility of the executive to make decisions on matters of foreign affairs and the inconclusive state of the record.  The appropriate remedy in this case is to declare that K’s Charter rights were violated, leaving it to the government to decide how best to respond in light of current information, its responsibility over foreign affairs, and the Charter.

More from the Globe, CP, Star, Canwest, Sun, CBC, Reuters, AP and Bloomberg.

Where will he land?

By Michael Friscolanti - Thursday, November 26, 2009 at 11:00 AM - 6 Comments

The exact timeline is still sketchy, but at some point in the coming weeks, a blindfolded Omar Khadr will be escorted out of his jail cell, shackled at the wrists and ankles, and carried onto a military cargo plane. Though he won’t have the pleasure of witnessing it with his own eyes, Guantánamo Bay, Cuba—Khadr’s prison for the past seven years, beginning at the tender age of 16—will disappear into the distance within a matter of minutes.

Where he will land is still a mystery. The White House announced last week that the 23-year-old is slated to face a military commission—somewhere on U.S. soil—for his alleged war crimes, including the murder of an American soldier in Afghanistan. Yet in the very same breath, Barack Obama’s attorney general left open the possibility that Khadr, a Canadian citizen, could be transferred to his home country before a trial ever begins. Fuelling such speculation is a separate hearing in front of the Supreme Court of Canada, which must decide, once and for all, whether Stephen Harper should be forced to at least ask the Americans to repatriate Khadr. The legal arguments are complex, but at the heart of the case is a growing sense that if the Prime Minister simply asked for his release, Washington would happily oblige.

In other words, that plane leaving Gitmo could fly straight to Canada.

It’s not quite that simple, of course. The Supreme Court may not issue a ruling until the new year, and even if it does order Harper to bite his lip and lobby for Khadr, there is no guarantee the Americans will hand him over carte blanche. But for a boy (now man) who has grown up inside Gitmo’s barbed wire, the end has never felt so close. Which means the biggest question of all—the one Harper is fighting in court to avoid—must now be answered: if Omar does return to Canada, what exactly do we do with him?

“I’m not going to argue that he hasn’t served enough time, but I might argue that he’s still a threat,” says Layne Morris, a retired U.S. army sergeant who lost his right eye in the 2002 firefight that ended with Khadr’s capture. “It comes down to security. Are we confident we can let this guy go and he’s not going to try to cut people’s throats next week? That’s the overwhelming question.”

There is no easy answer. To many, Khadr is still the loyal son of a senior al-Qaeda operative, a Toronto-born teenager who lived with Osama bin Laden and allegedly tossed a grenade that killed Sgt. 1st Class Christopher Speer, a decorated Special Forces medic. To others, he is an innocent child soldier thrust into battle by his radical dad and tortured, over and over, until he confessed to a crime he didn’t commit. It’s no wonder the feds would rather let someone else (i.e., the Americans) figure out which label fits best.

If he is flown back to Canada, Khadr could—at least theoretically—face a bevy of criminal charges, including high treason (“waging war” against an army allied with Canada) and participation in a terrorist organization (al-Qaeda). But would a jury ever convict someone who was shot by U.S. troops at age 15, shipped to the world’s most notorious prison at 16, and who was clearly under the spell of his fundamentalist father? Even with a guilty verdict, it’s hard to imagine his young age would warrant a sentence other than time served.

The other option—allowing Khadr to reunite with his extremist family, where he is sure to become a folk hero for wannabe jihadists—is equally unattractive. His sister once wished she had “the guts” to be a suicide bomber, his eldest brother is an accused al-Qaeda gunrunner, and another brother is paralyzed from the waist down after being shot by Pakistani troops in the same clash that killed their father. The Cleavers they are not.

“Omar has been branded by the family,” says Dennis Edney, that family’s long-time lawyer. “When you talk about the Khadr brand, there is no distinction. But I have talked to Omar about not going back to his family, and Omar understands that and has agreed to that—and his family has agreed to that.” (Members of the family did not respond to emails from Maclean’s.)

Earlier this year, Edney released a so-called “reintegration plan” for his client that includes religious and psychological counselling, supervision by law enforcement officials, and a home-schooling program delivered by King’s University College in Edmonton. “I would take him home with me, in Alberta,” Edney says. “He’s just a kid who wants to be a doctor and who wants to just get on with his life. I’ve never met a more peaceful guy.”

It’s a difficult description to swallow; fellow Canadians have seen the infamous video of a young Omar smiling as he wires together land mines destined for the feet of coalition soldiers. Stephen Xenakis, a U.S. psychiatrist who has treated Khadr over the past year, has his own opinions about whether his patient is still a threat to society. And although he would prefer to save those opinions for a possible day in court, he does offer this much: “He is a really kind, decent, thoughtful, sensitive young man, and he cares about people. It’s really important to appreciate that he does not have any vindictiveness in his nature at all. There is not a hard edge to him at all, and there is no sense of vengeance.”

What Khadr wants, Xenakis says, is “fair justice.” Speer’s widow and two young children crave the very same thing.

A mess of legalities

By Aaron Wherry - Monday, November 16, 2009 at 1:06 PM - 19 Comments

Slate’s Dahlia Lithwick reviews Omar Khadr’s legal situation here and in the United States. And, as she notes, all three hours and 42 minutes of Friday’s fascinating Supreme Court hearings can now be seen here.

Lithwick notes the intervention of Simon V. Potter, an impressive performance I forgot to mention on Friday. Mr. Potter, a Scot apparently, chose to deliver his remarks in fluent French, answered questions in English, and managed to do both with the commanding presence of a Shakespearean stage actor.

Omar Khadr—closer to home?

By Michael Friscolanti - Saturday, November 14, 2009 at 8:47 AM - 26 Comments

After seven long years in captivity, Omar Khadr is finally leaving the notorious U.S. prison camp at Guantanamo Bay, Cuba. But he is not a free man. Not yet, at least.

In the latest chapter of the endless Khadr saga, the White House announced today that the 23-year-old Toronto native will be transferred to an American jail cell to face trial on U.S. soil. Exactly when he will arrive, or where he is going, has yet to be decided, but one thing is clear: despite his tender age, his celebrity supporters, and questionable evidence, the Americans still consider Omar Khadr a murderer.

However, as with all things Khadr, there’s a twist: while announcing the surprise transfer, U.S. Attorney General Eric Holder also left open the prospect that Khadr, a Canadian citizen, could be sent home before his trial ever begins—fuelling suspicion that if Ottawa simply asked for Omar’s return, the U.S. would happily oblige. When asked about that possibility, Holder told a Washington press conference: “We will, as that case proceeds, see how it should be ultimately treated.”

At the heart of all the uncertainty is a separate hearing in front of the Supreme Court of Canada, which is considering whether Prime Minister Stephen Harper should be forced to at least ask the U.S. to send Khadr home. Simply put, two lower courts have already ruled that the federal government violated Khadr’s Charter rights in 2004, when he was grilled by visiting Canadian officials at the Gitmo facility even though they knew he endured three weeks of sleep deprivation leading up to the interrogation. To compensate for that Charter breach, the Federal Court ordered Ottawa to seek his repatriation.

The Harper government appealed the judgment—twice—claiming that the business of foreign affairs belongs to elected officials, not the courts, and that the feds have no legal duty to lobby on behalf of every citizen arrested abroad. “We’re in the realm of diplomacy here,” federal lawyer Robert Frater told the Supreme Court justices this morning. “The government has the right to decide what requests should be made, how they should be made, and when they should be made. The courts are not in the best position to do that.”

Khadr’s lawyers, though, insist this is “a unique case.” Omar, they say, does not deserve special treatment because he is a Canadian citizen detained abroad; he deserves special treatment because he is a Canadian citizen detained abroad who had his Charter rights violated by his home country. As the Federal Court of Appeal said in an earlier ruling, that “opens up a different dimension.”

The stakes could not be higher. During all the years Khadr has been locked away at Guantanamo Bay, Ottawa has never once—not under the Liberals, and not under the Conservatives—asked the United States to send him home. The feds have simply stuck to the same old talking point: Khadr is facing serious charges in the U.S., and we respect the American justice system. But if the Supreme Court sides against Ottawa in the coming weeks, Harper can no longer hide behind those words. He will be forced to ask for Khadr back—and if Holder’s latest remarks are any indication, the White House just might say yes. It’s a scenario the prime minister is desperate to avoid (his government has already spent more than $1.3 million in legal fees fighting Khadr at every turn).

The son of a senior al-Qaeda fundraiser, Khadr was famously shot and captured by American troops during a 2002 firefight in Afghanistan. Just 15 years old at the time, he was shipped to Gitmo and later confessed to throwing a grenade that killed Sgt. Christopher Speer, a decorated U.S. army medic with two young children. But in the years since, human rights groups and the Canadian Bar Association have rallied to the teenager’s defence, claiming his confession was the result of incessant torture and insisting that he cannot be held responsible for his actions because he was technically a child soldier. Should he ever return to Canada, Khadr would no doubt receive a hero’s welcome at the airport.

But if that day ever comes, it is federal authorities that will have to figure out what to do with him. It is a no-win situation, to put it mildly. Charge him under Canada’s anti-terror laws, and the case is certain to flop. What jury would convict a 15-year-old boy who was clearly following the orders of his radical father? The other option—reuniting him with his extremist family, where he is sure to become an inspiration for wannabe Toronto 18s—is no less nauseating. This is a family, remember, that is under constant police surveillance. Omar’s sister had her laptop seized by the RCMP; his older brother, an alleged al-Qaeda gunrunner, is facing extradition to the U.S.; and every other accused terrorist in Canada seems to count the family among their closest friends.

It’s no secret why Stephen Harper is fighting to keep Khadr in U.S. custody.
For now, at least, he will get his wish. Khadr is among ten high-profile detainees who will be flown to the U.S. to face American justice, including the Sept. 11 mastermind, Khalid Shaikh Mohammed. The accused 9/11 plotters, five in all, will stand trial in a Manhattan courthouse, just blocks from where the Twin Towers fell, while five others, including Khadr, will have their fate decided by a U.S. military commission. President Barack Obama originally cancelled the Bush-era commissions during his first week in the White House, but he has since reinstated them, with new rules governing due process. Hearsay evidence, or evidence gleaned from torture, will not be admissible.

To Khadr’s defence team, those assurances ring hollow. “We thought that the incoming Obama administration signaled a new day with respect to these cases—a new respect for civil liberties, an abhorrence of torture, a respect for the time-honoured legal procedures and protections that are mandated by the constitution and enforced by the federal courts,” said Barry Coburn, one of Khadr’s American attorneys, who was in Ottawa today for the Supreme Court hearing.

Dennis Edney, Khadr’s long-time Canadian lawyer, said at the very least, the military commission is preferable to an American civilian court. “He would be dead in the water, just because of the climate of terrorism in the United States,” Edney told Maclean’s. “You could almost say the best thing that could happen to him is to stay within the military commission process, because at the end of the day, a military jury understands the law of war. They understand a young kid involved in a battle that lasted minutes—and then spent the next seven years at Guantanamo.”

Layne Morris, a retired Special Forces sergeant, lost an eye in the 2002 ambush that ended with Khadr’s capture. He doesn’t particularly like the idea of Omar landing on American soil, but if it means he will finally stand trial, he supports it. “I have a responsibility to seek justice in this case on behalf of a lot of people,” says Morris, who stays in touch with Sgt. Speer’s widow, Tabitha. “But I’ve got absolutely zero problem if he goes to a military tribunal and they say: ‘Alright, you’re sentenced to time served.’ I don’t care. I’m more concerned about the security. Regardless of how many years you give him, are we confident that we can let this guy go and he’s not going to be trying to cut people’s throats next week? That’s the overwhelming question.”

One of many.

The Commons: 'This is an exceptional case'

By Aaron Wherry - Friday, November 13, 2009 at 4:18 PM - 26 Comments

The Scene. As a general rule, the higher the ceiling, the more important the proceedings that fall beneath it. So it is that there is something more than 20 feet between floor and ceiling in the Supreme Court. And so here it was that the justices took their place at precisely 9am this morning and announced a start to proceedings in the matter of Prime Minister of Canada et al. v. Omar Ahmed Khadr.

The government’s man this day was a short fellow, blessed of a large forehead and mess of hair at the back, wearing small glasses in the middle of his face. His opening gambit was suitably dramatic. The court, he ventured, had no more authority to tell the government to request Mr. Khadr’s repatriation, then it had to decide that the ambassador be recalled or warships be amassed along the border to enforce that repatriation.

“We’re a long way,” one justice ventured shortly thereafter, “from recalling the ambassador.”

Perhaps. Though maybe just barely. Continue…