
High court's ruling in Khadr case could have wide-ranging impact


OTTAWA - Accused terrorist Omar Khadr, facing U.S. military charges that could put him in jail for life, is about to find out whether he'll get access to Canadian government documents to help defend himself.
A judgment due Friday from the Supreme Court of Canada may also shed light on the broader legal question of whether diplomats, intelligence officers and other Canadian officials operating abroad are bound by the Charter of Rights in their overseas dealings.
The court's conclusions on that point could have far-reaching repercussions - including a potential impact on another case, now before the Federal Court of Appeal, on the ground rules for handling military detainees in Afghanistan.
"We're hoping the Supreme Court is going to clarify things," says Paul Champ, an Ottawa human-rights lawyer involved in the Afghan detainee case.
"But I don't know which way they're going to go."
Toronto-born Khadr was 15 years old when he was captured by U.S. forces in Afghanistan in a firefight in 2002. He's spent over five years in detention at the American naval base in Guantanamo, Cuba, and is expected to go on trial this summer before a special military tribunal, charged with murder, conspiracy and other terror-related offences.
It's known that Khadr was questioned at Guantanamo in 2003 by officials from Foreign Affairs and the Canadian Security Intelligence Service, and that they shared the results of their interrogations with U.S. authorities.
Khadr's Edmonton-based lawyers, Nathan Whitling and Dennis Edney, have already obtained some heavily censored documents from Ottawa's vast holdings on the case. But they're seeking thousands more pages, in the hope the material will help their client's U.S. counsel mount a stronger defence at trial.
The key issue is whether the Charter - which guarantees full disclosure of Crown evidence to defendants in Canadian criminal cases - can be stretched to cover events abroad.
The federal government contends that it can't.
"The right to receive pre-trial disclosure is a right protected by the Charter for persons accused of crimes in Canada," Justice Department lawyer Rob Frater told the Supreme Court in March. "It is not engaged by a foreign prosecution."
Khadr's counsel maintained the Canadian interrogations at Guantanamo violated Charter safeguards and triggered disclosure obligations under Canadian law.
"Rather than acting to protect the basic human rights of its young citizen, the Crown chose to take advantage of his vulnerability," Whitling argued in March.
The Supreme Court has ruled in the past that, as a general rule, Canadian officials abroad need only respect the laws of the host country. But the court has also suggested there could be a major exception - if the host country is violating internationally guaranteed human rights.
Khadr's lawyers contend the detention conditions at Guantanamo, and the U.S. military tribunals set up to try suspects there, don't measure up to international standards.
They have the backing of human-rights groups who say the U.S. is violating international treaties on civil and political rights, justice for young offenders and treatment of prisoners.
The federal government says those questions should be argued before an American court and insists that Canadian judges have no business getting involved.
Champ says it's anybody's guess whether the judgment Friday will stick to narrow points of law or venture a wider opinion on whether the United States is respecting human rights.
"I can understand why there might be some reluctance for the Supreme Court to go there," he said. "It no doubt would create some waves diplomatically and internationally."
Whitling, for his part, said his main goal has always been to get the documents Khadr needs to defend himself, no matter what the legal reasoning.
"All we care about is the disclosure," he said. "It doesn't matter how you get there."
Khadr, whose late father Ahmed was a key lieutenant to al-Qaida leader Osama bin Laden, 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 repeatedly refused to intervene in Khadr's case.




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