OTTAWA – Accused terrorist Omar Khadr has won limited access to Canadian government documents to help defend himself against a murder charge before a U.S. military tribunal.
The Supreme Court of Canada, in a 9-0 judgment Friday, agreed that Khadr has a constitutional right to material related to interviews Canadian officials conducted with him during his detention at the U.S. naval base in Guantanamo Bay, Cuba.
But the court rejected demands for many more documents held by Ottawa dealing with other aspects of the case. And it left the door open for the federal government to raise objections to disclosure of certain material on national security grounds.
A Federal Court judge will study the papers in question, receive submissions from the parties and “decide which documents fall within the scope of the disclosure obligation,” the high court said.
The ruling 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.”
By contrast, human rights groups were pleased with a broader legal principle affirmed by the court – that the Charter of Rights, at least in some circumstances, follows the flag when Canadian officials go abroad on government business.
“I think it’s 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 court had ruled in the past that, as a general rule, Canadian diplomats, intelligence officers and police only need to obey the laws of a host country when they operate overseas.
But the judges made it clear Friday – in a decision issued collectively in the name of court and not signed by any individuals – that there are exceptions to that general rule.
The court avoided taking a position of its own on one of the most contentious questions raised by Khadr’s lawyers – whether current detention conditions at Guantanamo, and the military tribunals that try suspects there, violate international human rights standards.
But the judges got at the issue through the back door, noting that the U.S. Supreme Court has already ruled that some aspects of the original detention and trial processes – since revised – didn’t respect basic rights of the accused.
“The process in place at Guantanamo Bay at the time Canadian officials interviewed Khadr and passed on the fruits of the interviews to U.S. officials has been found by the U.S. Supreme Court . . . to violate U.S. domestic law and international human rights obligations to which Canada subscribes,” the judges wrote.
The normal principle of Canadian officials deferring to foreign law does not extend to cases where internationally protected rights are infringed, they said. “Consequently, the charter applies.”
Toronto-born 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.
He was questioned at Guantanamo in 2003 by officials from Foreign Affairs and the Canadian Security Intelligence Service who said they were conducting their own information-gathering operation separate from the U.S. criminal case.
But the Canadians later shared the results of the interrogations with American authorities, and defence lawyers argued that was enough to trigger disclosure obligations under the charter.
The case has been closely watched by human-rights organizations, in large part because of the dispute about whether the charter follows the flag when Canadian officials go abroad.
The same point is at the heart of another action, now before the Federal Court of Appeal, on the handling of detainees captured by Canadian soldiers in Afghanistan.
Khadr’s brother Abdullah is currently the target of extradition proceedings launched by the U.S. government, which wants to try him on terrorism charges. Their late father Ahmed was a key lieutenant to al-Qaida leader Osama bin Laden.
Omar is the last citizen of a western democracy held at Guantanamo. Other countries have successfully pressed the Americans to return their nationals to face justice at home, but Prime Minister Stephen Harper’s Conservative government has so far refused to do the same.
