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Terror Suspect Khadr Wins Partial Access to Federal Papers for Defence Effort

Posted on: Friday, 23 May 2008, 18:00 CDT

By Jim Brown, THE CANADIAN PRESS

OTTAWA - Accused Canadian terrorist Omar Khadr has come away from the country's highest court with more than he had before - but less than he hoped to get - in a quest for federal documents to help him mount his defence against a U.S. murder charge.

In a 9-0 judgment Friday, the Supreme Court of Canada ruled Khadr has a constitutional right to material compiled by Canadian diplomats and intelligence officers who interviewed him during his detention at the U.S. naval base in Guantanamo Bay, Cuba.

The court also affirmed a broader legal principle with potentially far-reaching implications - that the Charter of Rights, at least in some cases, follows the flag when federal officials go abroad on government business.

That's especially so, said the judges, in a case like Khadr's where Canadian officials "participated in a process that was contrary to Canada's human rights obligations."

Nevertheless, the court set limits on the material Khadr could pry out of the government. It rebuffed demands for thousands of additional pages and left room for Ottawa to argue that some information should be withheld on national security grounds.

A decision on the exact scope of the disclosure will be left to a Federal Court judge who has already begun vetting the material in a separate, closed-door hearing.

The mixed ruling Friday left Nathan Whitling, one of Khadr's legal team, hungering for more.

"We're not going to get most of the documents we wanted," Whitling told reporters. "We're going to get some (but) they're not the important ones."

The defence lawyer went on to renew a longstanding appeal to Prime Minister Stephen Harper and his ruling Conservatives to intervene in the case.

"Our hope at this point is that the Canadian government will read this decision and recognize what everyone else knows - that the system in Guantanamo Bay is contrary to international law, that Omar's rights have been seriously violated," said Whitling.

"We hope the Canadian government will now do something to bring Omar home."

Toronto-born Khadr, whose late father Ahmed was a key lieutenant to al-Qaida leader Osama bin Laden, is the last citizen of a western democracy held at Guantanamo.

Other countries, including Britain and Australia, have successfully pressed the Americans to return their nationals to face justice at home. But Harper has repeatedly refused to lobby for Khadr's repatriation to Canada.

While Khadr's defence team fretted over the judgment's practical impact Friday, human-rights groups were pleased with the way the Supreme Court handled the wider constitutional issues raised by the litigation.

"I think it's a great victory for human rights," said Paul Champ, co-counsel for the British Columbia Civil Liberties Association which intervened in the case.

"It reaffirms that Canada is a state built on human rights and that Canadian officials, no matter where they go in the world, have to respect fundamental human rights."

The key issue in the case was whether the Charter of Rights - which guarantees pre-trial disclosure of Crown evidence in criminal cases in Canada - could be stretched to cover a prosecution abroad.

The federal Justice Department contended it could not, while Khadr's lawyers maintained that domestic disclosure rights were triggered when officials from Foreign Affairs and the Canadian Security Intelligence Service interrogated Khadr at Guantanamo in 2003.

The Canadians said they were gathering intelligence independently of the U.S. criminal case, but they later shared the results of their questioning with American authorities.

The Supreme Court has ruled in the past that, as a general rule, Canadian officials only need to obey the laws of the host country when they operate overseas.

But the court has also said - and reiterated Friday - that there are exceptions to that general rule. The most important is when foreign laws may violate internationally guaranteed human rights.

The judges avoided taking a position of their own on the sensitive question of whether detention conditions at Guantanamo, and the military tribunals set up to try suspects there, measure up to international standards.

"Issues may arise about whether it is appropriate for a Canadian court to pronounce on the legality of the process at Guantanamo Bay," they delicately observed in a collective judgment that did not carry any individual signatures.

They managed to get at the issue through the back door, however, by noting the U.S. Supreme Court has already ruled that some aspects of the original detention and trial procedures didn't respect basic rights of the accused.

The judges offered no opinion on whether the revised detention and trial procedures now in place are more acceptable. That issue is currently before the courts in the United States.

But the existing American judicial precedents about the system as it existed in 2003 were good enough for the Canadian court.

"The violations of human rights identified by the United States Supreme Court are sufficient to permit us to conclude that the regime providing for the detention and trial of Mr. Khadr at the time of the CSIS interviews constituted a clear violation of fundamental human rights protected by international law."

As a result, said the judges, Khadr was entitled under the Charter of Rights to disclosure of the files compiled by Ottawa and shared with American officials.

Khadr was 15 years old when he was captured by U.S. forces in Afghanistan in a firefight in 2002. He's expected to face trial this summer on a murder charge arising from the death of an American soldier and is also accused of conspiracy and other terror-related offences.

Source: Canadian Press

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