Federal Lawyers Says Fate Of Khadr Not In Court’s Domain

A federal lawyer says the government – not a court – has the right to decide whether Omar Khadr should come home to Canada.

Counsel Robert Frater told a Supreme Court of Canada hearing Friday that the Toronto-born Khadr’s repatriation from a U.S. military prison is a political choice as opposed to a legal obligation.

“In my respectful submission, we’re in the realm of diplomacy here,” he said.

Frater denied the government had ignored calls to bring Khadr back to Canada.

“Mr. Khadr’s voice has been heard repeatedly.”

Khadr, 23, is being held by the Americans at the controversial military prison in Guantanamo Bay, Cuba, for allegedly throwing a grenade that killed a U.S. soldier in Afghanistan seven years ago.

The Conservative government is strongly opposed to his repatriation, but his lawyers and several intervenor groups argue that he should be returned to Canada.

The Supreme Court hearing was taking place as U.S. authorities announced Khadr is among a group of terror suspects at Guantanamo who are now slated to face justice in New York.

The Toronto-born Khadr is one of five suspects slated to face military commissions on U.S. soil. The U.S. military court proceedings were initiated against Khadr four years ago.

The Tories have rejected a growing chorus of calls to deal with him on Canadian soil.

The keenly anticipated high-court hearing will determine Khadr’s fate.

In a 2-1 judgment in August, the Federal Court of Appeal dismissed an earlier challenge by the Harper government, which has consistently refused to ask the U.S. to send Khadr to Canada.

Documents show Khadr’s captors threatened him with rape, kept him isolated and deprived him of sleep by moving him from cell to cell.

The Federal Court of Canada ruled in April that the Conservative government must ask the United States to return Khadr “as soon as practicable.”

It said Canada’s refusal to request his repatriation offends fundamental justice and violates Khadr’s constitutional rights to life, liberty and security of the person.

The Federal Court of Appeal rejected the government’s bid to overturn the decision, saying the conduct of Canadian officials who interviewed Khadr at Guantanamo amounted to “knowing participation” in his mistreatment.

Canadian officials questioned Khadr at Guantanamo and shared the results of their interrogations with the Americans.

The appeal court said the principles of fundamental justice do not permit the questioning of a prisoner to obtain information after he has been subjected to cruel and abusive treatment to induce him to talk.

“Canada cannot avoid responsibility for its participation in the process at the Guantanamo Bay prison by relying on the fact that Mr. Khadr was mistreated by officials of the United States, because Canadian officials knew of the abuse when they conducted the interviews, and sought to take advantage of it,” the majority ruling said.

Public release of a video in which a teenaged Khadr cries for his mother sparked an international uproar last year.

In his dissenting opinion, Justice Marc Nadon said the fact Canadian officials interviewed Khadr cannot amount to cruel and unusual treatment, even if they were aware that he had been denied sleep.

“Mere knowledge of Mr. Khadr’s mistreatment cannot be equated with participation in such mistreatment.”

In May 2008, the Supreme Court ruled in a separate case that Canada had taken part in a foreign process that breached its international human-rights obligations.

The Khadr family has gained notoriety for apparent longstanding ties to al-Qaida leader Osama bin Laden.

Omar’s father, Ahmed Said Khadr, was a purported extremist and financier for bin Laden’s terror network. He was killed by Pakistani forces six years ago.

A brother, Abdul Karim, was left a paraplegic from wounds suffered in the firefight.