YEAR IN REVIEW: Omar Khadr: “Canadian officials who go to other countries are going to be bound by the Charter insofar as to when they’re interacting with Canadian citizens abroad,” said Whitling, whose litigation practice focuses, in part, on international human rights law at the Edmonton firm, Parlee McLaws LLP.

While a pivotal chapter of Omar Khadr’s sad saga concluded this year, the story about the youngest and the only Canadian (and Westerner) among the 176 detainees at Guantanamo Bay is far from over.




In late October, he accepted a deal to avoid a questionable military trial and lengthy prison term upon conviction, and pleaded guilty to five charges under the 2009 U.S. Military Commissions Act, including “murder by an alien unprivileged combatant” and “providing material assistance to terrorism” — ​offences created after his capture by American forces in Afghanistan.



In exchange, 24-year-old, Toronto-born Khadr received an eight-year sentence. He will spend one more year in Guantanamo Bay after which he can request (and likely obtain) repatriation to Canada under the plea deal.



Under the terms of Canada’s International Transfer of Offenders Act, Khadr is expected to serve the rest of his time in a provincial correctional facility for adults — ​since he was a youth at the time his offence was committed — ​and be eligible for parole after one year and eight months, or the summer of 2012, according to one of his Canadian lawyers.



But while Khadr may by then be a free man, Nate Whitling suggests that some of the jurisprudence from his client’s legal battles in the Federal Court, Federal Court of Appeal and Supreme Court of Canada (SCC) could constrain officials of the Department of Foreign Affairs and International Trade (DFAIT) and Canadian Security Intelligence Service (CSIS) agents in the future.



“Canadian officials who go to other countries are going to be bound by the Charter insofar as to when they’re interacting with Canadian citizens abroad,” said Whitling, whose litigation practice focuses, in part, on international human rights law at the Edmonton firm, Parlee McLaws LLP.



But as he added, the SCC’s decision in Canada (Justice) v. Khadr, [2008] S.C.J. No. 28, emphasized that the life, liberty and security guarantees under s. 7 of the Charter applied to the interrogations of Khadr at the Guantanamo Bay naval base in Cuba by DFAIT and CSIS officials, because the process violated Canada’s obligations under international law.



The court referred to other decisions, such as one from its American counterpart in Rasul v. Bush, 542 U.S. 466 (2004), in which the U.S. Supreme Court held that detainees at Guantanamo had illegally been denied access to habeas corpus, and that the procedures under which they were to be prosecuted violated the Geneva Convention. In Khadr (2008), the SCC also referred to its earlier decision in R. v. Hape, [2007] S.C.J. No. 26, in which the court unanimously ruled that the deference required to the principle of comity, which implies acceptance of foreign laws and procedures when Canadian foreign officials are operating abroad, “ends where clear violations of international law and fundamental human rights begin.”



In the SCC’s second decision on Khadr’s situation in the Guantanamo Bay prison, Canada (Prime Minister) v. Khadr, [2010] S.C.J. No. 3, the court agreed with previous rulings by the Federal Court and the Federal Court of Appeal that Khadr was entitled to a remedy under s. 24 (1) of the Charter, since his constitutional rights were violated when a DFAIT official interviewed him in 2004, knowing that Khadr had been subjected by U.S. authorities to a sleep-deprivation technique. Known as the “frequent-flyer program,” it involved physically moving Khadr every three hours over a three-week period to make him less resistant to interrogation. However, the remedy Khadr sought — ​that the federal government be ordered to request his repatriation — ​was denied, “in view of the constitutional responsibility of the executive to make decisions on matters of foreign affairs.”



The government has yet to provide Khadr with any remedy. It could come in the form of challenging the validity of the plea bargain agreement reached between Canada and the U.S. once he is back on Canadian soil, according to constitutional law scholar Errol Mendes.



“His lawyers could say that he should be released immediately since the plea deal was in itself a violation of his rights. The Supreme Court of Canada has already said that the complicity of Canadian officials in his interrogation amounted to a violation of his constitutional rights,” said Mendes, a professor of law at the University of Ottawa’s common law section and the editor-in-chief of The National Journal of Constitutional Law. “Or Khadr could spend whatever time he has left to fulfill the plea agreement, but sue the hell out of the government for millions of dollars.”



Still, in an upcoming article on Khadr (2010) to appear in the Supreme Court Law Review, University of Toronto law professor Audrey Macklin wrote that “Khadr has been dumped in the mother of all legal grey holes, the place of right without remedy. And a legal grey hole is really little more than a black hole decorated with judicial wallpaper.”



In an interview, she explained that while not holding Canadian citizenship “can hurt,” being a Canadian citizen “doesn’t help when somebody is considered a pariah by the government.



“The government’s position is that it does not owe Canadian citizens any duty to assist them in any way when their fundamental rights are being violated abroad. The government claims absolute and unfettered discretion to pick and choose which Canadians to protect.”



Regardless of one’s views of Omar Khadr, this assertion of unaccountable discretion should worry all Canadians who travel outside the country. And so far, the SCC has been unwilling to contradict the government’s position, said Macklin.



Nathalie Des Rosiers, the Canadian Civil Liberties Association (CCLA)’s general counsel, said in an interview that the federal government needs to provide clarity on the criteria it applies to determine whether it will assist a Canadian in distress outside the country, since in recent years the message has been mixed.



Two years ago, a federal government-chartered jet whisked Canadian Brenda Martin away from a Mexican prison back to Canada where she was briefly remanded into custody before being released on parole for time served. Yet Maher Arar endured torture as a suspected terrorist in a tiny Syrian cell before a federal government commission exonerated him of any terrorist ties; a Federal Court last year had to order the government to issue a passport to Abousfian Abdelrazik, who was stuck in Sudan for six years; and in 2009 Suaad Haji Mohamud was stranded for three months and spent eight days in jail in Kenya, where she was charged with identity fraud — ​on Canada’s recommendation — ​after Kenyan immigration officials claimed her facial features didn’t match her Canadian passport (DNA testing later verified her identity). All three people hold Canadian citizenship.



“It looks bad if the government is helping white Canadians, but doesn’t help racialized Canadians,” said Des Rosiers, who is on leave as a professor in the University of Ottawa’s civil law section. “Maybe there are good reasons, but they should be more apparent to the public.



“Mendes believes Prime Minister Stephen Harper’s government made the decision that Khadr “wasn’t worth fighting for,” although he remains subject to a “potentially unlawful detention” under international law.



“The government is making distinctions between different types of Canadian citizens, and some have more rights than others. If it feels someone is not worthy to have the full protection of Canada, it won’t lift a finger. In fact, it will actually encourage a foreign state to let you basically rot in whatever condition you find yourself,” said Mendes. “Which is why I agree with the opposition that a Canadian is a Canadian is a Canadian. If we start making a distinction, we’re going down a very slippery slope.”



To help avoid that from happening, Des Rosiers is in favour of the creation of a new federal “ombudsman” who would represent all Canadians in need of assistance when outside the country.

But Ottawa lawyer and international and terrorist intelligence analyst David Harris offers a cautionary note about interpreting Charter rights in light of current national security concerns.



“We understandably have a greater focus on the individual, and I think that must continue…But I am a little concerned that we have gradually and inexorably been leading ourselves in directions that are incompatible with public safety,” said Harris, a former chief of strategic planning at CSIS prior to the Khadr case.



Harris acknowledged that while “platoons of exceptionally well-intentioned and well-educated lawyers are properly and vigorously advocating the interests of their clients in national security matters, I don’t see a great deal of public discourse in, and virtually any legal attention to, the sorts of backdrops, realities and threats I’ve seen on the ground. I think that reflects shortcomings in the profession and the community at large, and it interferes with our ability to seek a true balance in a delicate balance problem.”