SCC: Khadr Appeal May Consider Legality of Guantanamo Detentions

In a series of preliminary decisions, the Supreme Court Canada reiterated March 20, 2008 that it will allow a wide latitude of argument in its hearing of the Omar Khadr case as to "the legality of the detentions at Guantanamo in international law, and whether the Charter was breached by some form of Canadian complicity by interviewing [Mr. Khadr]and giving summaries of the interviews to the Americans."

The Court denied the Canadian government's motions to strike certain pleadings, to preclude the hearing of fresh evidence, and to revoke intervenor status granted to two parties, the University of Toronto, Faculty of Law — International Human Rights Clinic and Human Rights Watch and the British Columbia Civil Liberties Association, the Court .

Omar Khadr is a Canadian citizen who is imprisoned at the U.S. Naval Station in Guantanamo Bay, Cuba. He was 15 years old when he was captured in Afghanistan in July 2002. He is accused of five war crimes, including charges of murder in the grenade death of American soldier Christopher Speer. His trial before a U.S. military tribunal is scheduled for May 2008.

The Court's decisions were made in anticipation of its hearing on March 26, 2008 of an appeal by the Canadian government of a 2007 order of the Federal Court of Appeal granting wide disclosure rights to Khadr in his preparation for the U.S. military commission trial.

Khadr was granted disclosure of Canadian government's documentation for use in his defence at the military commission trial. The government's appeal will be conducted in a closed session of the Supreme Court of Canada.

As noted in The Court, a Canadian law blog that focuses Supreme Court of Canada matters:

It is settled law that the Crown is under an obligation to provide all relevant information to the defendant in a criminal trial, and also that "relevant" is very broadly defined: any information that has a reasonable possibility of being useful is considered relevant. It is also settled law that Canadian citizens are not uniformly entitled to information in the possession of the government of Canada. The question in this case is whether the Crown’s disclosure obligation applies to circumstances where (a) Mr. Khadr was captured abroad (in Afghanistan), (b) he was captured exclusively by the United States, and (c) he is being held by the United States without Canadian involvement.

In the decision under appeal, the Federal Court of Appeal held:

In these circumstances, the participation of Canadian officials in gathering evidence against the appellant at the pre-charge level raises, in my view, a justiciable Charter issue. They took an active role in interviewing the appellant and in transmitting summaries of the information collected to U.S. authorities. In doing so, they assisted U.S. authorities in conducting the investigation against the appellant and in preparing a case against him. Canada’s participation may have made it more likely that criminal charges would be laid against the appellant thereby increasing the likelihood that he would be deprived of his right to life, liberty and security of the person. I believe that in these circumstances the Charter applies.

In its rulings, the Supreme Court did allow the Crown's motion for a sealing order in relation to proposed fresh evidence which was given as disclosure in the U.S. proceedings. U.S. authorities indicated they would only allow the evidence to be tendered in the Supreme Court of Canada on condition of a sealing order being in place.

In an August 12,2007 letter, Canadian Bar Association President J. Parker MacCarthy, Q.C. called upon Prime Minister Stephen Harper to intervene to secure Khadr's release into Canadian custody:

I am writing on behalf of the Canadian Bar Association to urge you to negotiate with the U.S. government the release of Canadian citizen, Omar Khadr, from Guantanamo Bay. Khadr should be released into the custody of Canadian law enforcement officials, to face due process under Canadian law.

...In an April 2006 letter, the CBA urged you to condemn the failure of the U.S. to meet the underlying principles of the Rule of Law through its detention of “enemy combatants” at Guantanamo Bay. We remain convinced that the procedures for holding detainees, including denial of due process and the interference with privileged communications with their solicitors, constitute an affront to the Rule of Law. The fact that Omar Khadr was a minor at the time of his capture only makes his situation more urgent.

As a signatory to the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Combat, Canada has an obligation to ensure that the Protocol is being applied to its citizens.

- Garry J. Wise, Toronto

This article is cross-posted at BAR-eX

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