A Federal Court has ordered Stephen Harper to seek the immediate return of Omar Khadr from Guantanamo Bay, but the Prime Minister is refusing to comply with the order.Federal Court Justice James O'Reilly ruled yesterday that Canada had denied the Toronto-born Khadr his constitutional right to a fair trial and violated international law protecting children captured in armed conflict.
"Canada had a duty to protect Mr. Khadr from being subjected to any torture or other cruel, inhuman or degrading treatment or punishment, from being unlawfully detained, and from being locked up for a duration exceeding the shortest appropriate period of time," O'Reilly wrote.
Highlighting the fact that Khadr was only 15 when shot and captured by U.S. forces in Afghanistan in July 2002, O'Reilly concluded that Ottawa must request that the "United States return Mr. Khadr to Canada as soon as practicable."
But when questioned in the Commons yesterday about whether he will seek Khadr's return, Harper said his government's position remains the same.
"The facts, in our judgment, have not changed. We will be looking at the judgment very carefully and obviously considering an appeal," Harper said.
Canada's opposition parties and Khadr's lawyers have argued that he must be treated as a child soldier – and international law stresses rehabilitation rather than reprisals. Canadian courts have condemned the government's actions in Khadr's case twice before, producing rulings that halted his interrogation by Canadian agents at Guantanamo and forced Ottawa to disclose evidence in the case.
But yesterday's ruling marked the first time the courts directly ordered the government to seek his repatriation and rebuked Ottawa for not taking his age into account.
"Canada cannot participate in torture. Particularly if the person being tortured is a Canadian child," said Khadr's Edmonton-based lawyer, Nathan Whitling. "When they decide to do so anyway, they must make amends."
Khadr has been in U.S. custody since July 2002. Now 22 and the only citizen of a western nation still imprisoned, his fate hangs in the balance as the U.S. Justice Department reviews his case.
President Barack Obama ordered the prison at Guantanamo shut by January 2010. The remaining 240 detainees will either be tried elsewhere, repatriated or taken to a willing third country.
Khadr is accused of conspiring with Al Qaeda, and throwing a grenade that killed U.S. soldier Sgt. Christopher Speer.
Last week, Khadr's military lawyers and prosecutors made their final appeal to the U.S. Justice committee reviewing Khadr's case. Even if Harper were to intercede on Khadr's behalf, the U.S. could still decide to try the detainee in a federal or military court.
Liberal Leader Michael Ignatieff told reporters in Washington yesterday that the government must act on principle in Khadr's case.
"My view of the obligations of the government of Canada is, you don't get to pick and choose which Canadians overseas to defend. You have to defend them all – that's what a passport means," he said.
Bloc Québécois Leader Gilles Duceppe raised the possibility that the government could be complicit in torture by failing to act.
NDP Leader Jack Layton said a government appeal of the ruling would simply be "procrastinating."
"Evidently Mr. Harper ... is prepared not only to ignore the will of Parliament, which has called for his repatriation, (and) is prepared to ignore international law and the precedent being set by other countries, but is now prepared to ignore a Federal Court," Layton said.
During the first three months after his capture, Khadr was questioned by military interrogators at the U.S. base in Bagram, Afghanistan more than 40 times, sometimes for eight hours a day.
Khadr alleges he was threatened physically and with dogs, beaten and forced to maintain what's known as "stress positions" despite his age and the wounds he suffered in 2002. Interrogations continued at Guantanamo, where he was transferred in October 2002.
O'Reilly noted in his ruling that the U.S. flouted international law by not providing "special status as a minor" and that Canada was complicit in that violation.
"Canada was required to take steps to protect Mr. Khadr from all forms of physical and mental violence, injury, abuse or maltreatment," he said in his 41-page ruling.
Instead, a Canadian foreign affairs official proceeded to interview Khadr in spring 2004, despite being told that Khadr had previously been subjected to a sleep deprivation regime.
"We know that Canada raised concerns about Mr. Khadr's treatment, but it also implicitly condoned the imposition of sleep deprivation techniques on him, having carried out interviews knowing that he had been subjected to them," O'Reilly wrote.
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