Ottawa — From Saturday’s Globe and Mail Last updated on Saturday, Aug. 15, 2009 11:23AM EDT
Prime Minister Stephen Harper is hinting his government will fight on in court rather than comply with a second decision ordering his government to ask the Americans to release Omar Khadr from Guantanamo Bay.
Speaking with reporters, Mr. Harper said officials will be reviewing yesterday’s 2-1 ruling from the Federal Court of Appeal before announcing the government’s next move. However, he twice highlighted the fact that one of the judges sided with the Crown.
“I’m aware there is a decision that has been rendered. Apparently it is a split decision,” Mr. Harper told reporters today in Chelsea, Que.
That comment leads one constitutional expert to predict the government’s next move will be to seek leave to appeal to the Supreme Court of Canada.
“I think the federal government would be wanting to hang its hat on the dissent because it so clearly agrees with its position,” says Michael Lynk, the associate dean of law at the University of Western Ontario. “The dissent, in my view, gives them enough hope that – whether or not they win at the Supreme Court – they certainly can wait another eight to 15 months.”
Mr. Khadr is facing criminal prosecution stemming from allegations he killed an American with a hand grenade during a 2002 battle in Afghanistan when he was 15 years old.
Since 2002, he has been held by the United States in Guantanamo Bay, Cuba. Mr. Khadr’s lawyer has said criminal prosecutions there are currently in limbo as the U.S. reconsiders its policies regarding detentions at the military base.
Canada is the only country not to have asked for and received the repatriation of its citizens from Guantanamo and Mr. Khadr is the only remaining detainee from a Western country.
Liberal foreign affairs critic Bob Rae said the government has a moral obligation to seek Mr. Khadr’s return.
“The government’s legal case has been blown out of the water,” he told reporters at a news conference. Mr. Rae acknowledged there is little public sympathy for the Khadr family, whose late patriarch, Ahmed Said Khadr, had close ties to Osama bin Laden. Yet Mr. Rae said the government must treat all Canadians equally when it comes to human rights.
“Frankly, there isn’t a choice,” he said. “We can’t choose between different levels of citizenship.”
The federal court ruled in April that Canada must ask the Americans to hand over Mr. Khadr. The federal government appealed, arguing the courts have no business interfering in foreign affairs. In a June hearing, the government’s legal team told the three court of appeal justices that such decisions should be left entirely in the hands of the Prime Minister and his cabinet.
While one of the three court of appeal justices agreed with the government, two did not.
In their majority ruling, justices John Evans and Karen Sharlow said Canada must act because Canadian officials violated Mr. Khadr’s Charter rights by interrogating him at Guantanamo while he was under duress and then sharing that information with the Americans.
“While Canada may have preferred to stand by and let the proceedings against Mr. Khadr in the United States run their course, the violation of his Charter rights by Canadian officials has removed that option,” the decision states.
“The knowing involvement of Canadian officials in the mistreatment of Mr. Khadr in breach of international human rights law, in particular by interviewing him knowing that he had been deprived of sleep in order to induce him to talk, ‘opens up a different dimension’ of a constitutional and justiciable nature,” they wrote.
Mr. Justice Marc Nadon dissented from his two colleagues’ position. He agreed with the government’s view that the courts should not be deciding whether Canada should request Mr. Khadr’s repatriation.
“It is up to Canada, in the exercise of its powers over foreign policy to determine the most appropriate course of action in dealing with the US with regard to Mr. Khadr’s situation,” he wrote in a dissenting judgment.