Government signals no change in Khadr repatriation stance

OTTAWA — The Harper Conservatives showed no sign Friday of retreat from their long-standing refusal to seek Omar Khadr's repatriation after the Supreme Court of Canada handed the government a legal victory but a moral defeat in its treatment of the Guantanamo Bay detainee.

The Supreme Court of Canada unanimously refrained from ordering the government to seek Khadr's repatriation, but declared that federal actions have violated his constitutional rights and steps should be take to rectify the wrong.

Justice Minister Rob Nicholson lauded the court's deference to the government "on matters of foreign affairs"_and reiterated the government's position that Khadr is accused of serious crimes.

"The Supreme Court overturned two previous lower court decisions and ruled that the government is not required to ask for accused terrorist Omar Khadr's return to Canada," Nicholson said in a statement.

He then listed the five "very serious charges"_against Khadr: murder, attempted murder, conspiracy, material support for terrorism and spying.

"The government will carefully review the Supreme Court's ruling and determine what further action is required," Nicholson said.

In its 9-0 decision, the court found the Canadian government violated Khadr's Charter of Rights and Freedoms guarantee of fundamental justice when they interrogated him at Guantanamo Bay and passed the fruit of their interviews on to U.S. authorities.

On one occasion in 2004, a Foreign Affairs official questioned Khadr while knowing he had been subjected to sleep deprivation before the interview to make him more amenable.

The maltreatment, which included questioning him without the presence of a lawyer, "offends the most basic Canadian standards about the treatment of detained youth suspects," said the decision.

The court, however, left final say on seeking repatriation up to the government, concluding it is in the best position to assess the impact on foreign relations, taking into account Canada's broader national interests.

"The appropriate remedy in this case is to declare that Khadr's charter rights were violated, leaving it to the government to decide how to best decide in light of current information, its responsibility over foreign affairs and the charter," said the decision, written by the court as a whole to emphasize its unanimity.

"It would not be appropriate for the court to give direction as to the diplomatic steps necessary to address the breaches of Mr. Khadr's charter rights."

Khadr's lawyer, Nathan Whitling, described the ruling as "the end of the legal road" for Khadr in his hopes of returning to Canada and that the legal team will now shift its focus to helping him through his military trial in the United States, slated for July.

Whitling predicted that the Conservative government will ignore its charter violation and maintain its refusal to ask American authorities to repatriate the Toronto-born Khadr, who is the only remaining westerner at Guantanamo Bay.

"We're pretty darn sure that nothing good is going to come of this," said Whitling, adding that he already warned Khadr not to get his hopes up.

"Essentially the Supreme Court decided that this very serious charter breach is not going to be remedied at all,"_Whitling said.

Now 23, Khadr was 15 years old when he was captured by the U.S. following a shootout between American forces and al-Qaida fighters in Afghanistan in July 2002. He is accused of throwing a grenade that killed a U.S. army medic.

Khadr's supporters were divided on whether the ruling exerts enough pressure —_it even suggests repatriation as a possible remedy — that the government will have no choice but to seek Khadr's return to his birth country.

"We put it back to the government to demonstrate that there is any other effective remedy that would come close to that," said Alex Neve, secretary general of Amnesty International Canada.

Liberal Leader Michael Ignatieff concurred that the court made it clear that the Conservatives must do something to rectify Khadr "spending seven years in the tank" at Guantanamo Bay.

"The only thing it can't do is do nothing," Ignatieff told reporters on Parliament Hill.

NDP justice critic Joe Comartin accused the court of "ducking the issue" by expecting the government to act in good faith, but failing to give them a deadline to remedy the problem.

Comartin predicted, at the most, the government will drag out the situation by engaging in lengthy, low-level diplomatic talks with the U.S. over the prospect of Khadr's repatriation.

The court cautioned that its ruling does not preclude judges from issuing orders that tread on foreign policy, even though it decided against it in Khadr's case.

The charter does not normally apply to Canadians abroad, except in rare circumstances.

The Supreme Court ruled in 2008 that all bets are off in Khadr's case because Canadian officials, in questioning Khadr, participated in a detention process at Guantanamo Bay that had been declared illegal by the Supreme Court of the United States.

John Dorion, the Bloc Quebecois human rights critics, said the "ideological stubbornness"_of the federal government toward a young Canadian citizen "is even more worrisome and reprehensible given that nationals from all the other countries were repatriated from Guantanamo a long time ago."