From the Toronto Star Aug 14, 2009 11:24 AM
OTTAWA - The Conservative government has lost its appeal of a court decision ordering it to bring Omar Khadr home to Canada from the U.S. detention facility in Guantanamo Bay, Cuba.
The Federal Court of Appeal ruled today that the government offered no compelling reasons why it should not comply with an order to request that Khadr, 22, be repatriated to Canada.
"There is no legal or factual foundation upon which this Court can conclude that the decision not to request Mr. Khadr’s repatriation is justified," the court ruled.
A Federal Court decision, handed down in April, found that Canadian officials breached Khadr’s Charter rights by interrogating him after he had been subject to harsh interrogation techniques at the hands of American officials.
The information gleaned from Canadian questioning was then handed over to U.S. officials.
The Tory government has refused to ask that Khadr be returned to Canadian custody, both because of his age — he was captured after a firefight in Afghanistan at age 15 and has been held in Cuba for seven years — and because of the treatment he has received while in U.S. custody.
"If Mr. Khadr is returned, it will be for the Attorney General to decide, in the exercise of his or her discretion, whether to institute criminal proceedings in Canada against Mr. Khadr.
"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 ruling stated.
Prime Minister Stephen Harper had argued that Canada must wait and see what the administration of U.S. President Barack Obama does in Khadr’s case.
U.S. military court proceedings initiated against Khadr four years ago remain up in the air.
Successive governments, both Liberal and Conservative, have refrained from intervening in the Khadr case. The Tories have rejected a growing chorus of calls to deal with him on Canadian soil.
The government can appeal today’s decision to the Supreme Court of Canada, the highest court in the land.
One of the government’s most pressing arguments in refusing to comply with the Federal Court decision has been the assertion that the federal cabinet alone has responsibility for making foreign policy decisions, a jurisdiction that no court should be able to limit or sway.
"There is no factual basis" for that claim in Khadr’s case, the appeal court ruled.
"In the unusual circumstances of this case, it was reasonable … to conclude that being ordered to make such a request of a close ally is a relatively small intrusion into the conduct of international relations."
— With a file from The Canadian Press