What Will Happen to Omar Khadr?

Omar Khadr's inevitable repatriation is approaching. How Canada chooses to treat him will test our commitment to the values entrenched in our Charter.

On May 21, President Barack Obama gave a major speech on national security and highlighted the details of his plan to close the now-infamous prison at Guantánamo Bay. He carefully divided the remaining Gitmo detainees into a number of categories, each of which will be treated differently – some will be transferred to U.S. federal jurisdiction, some will be tried by revamped military commissions, some will be released, and so on. Of particular interest to Canada is the president’s determination, wherever possible, to transfer some detainees safely to another country. This seems a likely and logical outcome for Omar Khadr.

Canada is the only major ally of the United States not to have pressured the Bush Administration to release a national from Gitmo, a fact that has not been lost on the Khadr family, his military-appointed lawyer, and many Canadians. Furthermore, Canada is certainly a “safe” country to which Khadr could be transferred – no worries about deportation to torture, as is the case of the Uighurs with respect to China.

Make no mistake – it doesn’t matter who occupies 24 Sussex Drive – when the U.S. president makes a phone call to the prime minister and suggests that Canada take back Khadr, the answer can only be yes. It would no doubt be politically inconvenient for the recipient of such a phone call, given our recent spate of minority parliaments and the ever-looming threat of a general election. Moreover, it would most certainly provide a platform to the Khadr family to air their unpopular views. But it could easily happen in the foreseeable future.

What would happen next? Certainly a number of criminal defence lawyers will be standing in line, salivating to take on his case pro bono. Arguments will be made for his immediate release given the fact that he has already spent seven hard years in a maximum security adult facility (and that is probably the nicest way to describe Gitmo). Not to mention he is either a juvenile offender, child soldier, or both. It would be a tough line to ignore. He cannot be indefinitely held under the new security certificate provisions, as he is a Canadian citizen. Moreover, a creative statement of claim would certainly examine all possibilities for a tort suit against the federal government for its non-action as a prime and contributing factor to continued incarceration. As with Maher Arar, there will be demands for compensation and perhaps a commission of inquiry.

One approach would be to try Khadr under the provisions of Canada’s Anti-Terrorism Act, which doesn’t require that offences be committed on Canadian soil. The big challenge would be having enough evidence to determine guilt beyond a reasonable doubt. No Canadian court will admit evidence obtained under “enhanced interrogation”—much milder techniques on the part of Canadian police officers have already been rejected by our courts on constitutional grounds. He could be interrogated by the police in an effort to obtain untainted evidence, but one cannot imagine he would be terribly comfortable or forthcoming and would certainly be entitled to legal counsel of choice, who would also be present during such questioning.

At trial, Khadr’s legal counsel could argue that, as a minor and under the direction and control of his father, his actions hardly meet the threshold requirements of knowledgeable intent required by the Criminal Code. However, even in the unlikely possibility that Khadr enters a guilty plea in order to obtain a plea bargain or is found guilty, he would be given credit for time already served, and could likely be on the street soon afterward. After all, he is a first offender.

Nonetheless, a trial would provide the possibility for Khadr to clear his name, and would allow politicians to artfully dodge the issue and glibly state: “The matter is before the courts….” At the same time, however, those convinced of his “objective guilt” would no doubt be upset regardless of the outcome. (That crowd ought to be reminded that such determinations of guilt or innocence went out of fashion with witch-burning and the Soviet purge trials.)

The current government is likely bracing itself for the inevitable. Harper’s tightly controlled PMO responded to Washington last week that Canada would not accept 17 Uighurs, and for an explanation offered that none had any connection to Canada. Not so for Omar Khadr. An instructive case in point is the popular and media support for the return of Abdel Abdelrazik, who has been living in limbo at the Canadian embassy in Khartoum while Ottawa dithers and continually changes the rules governing his possible return home. Will Canadians soon be in the mood for rebalancing the scale towards the pole of liberty rather than protecting against increasingly ill-defined threats of national security such as homegrown terrorism? Indeed, an Obama-inspired season of atonement for the excesses of the War on Terror may be in order.

Should we be upset at this scenario? Not necessarily. It’s an oft-stated truism that hard cases make bad law, and perhaps even worse politics. Punishing Mr. Khadr further would be disproportionate and illogical, and may well constitute a dangerous evasion of the Charter values most Canadians hold dear. The thought of Omar Khadr, even if willing, cogent, and not obviously permanently scarred by his long detention in Gitmo, being interviewed by our earnest and liberal media about his ordeal is hardly a desirable outcome for any politician seeking re-election in this country.

However, the civil liberties and due process rights guaranteed by the Charter are best tested by how we treat those we find most distasteful or extreme, not those whom we like or approve. Going back to the Cold War, the miscarriages of justice, political trials, and McCarthyist witch-hunts and blacklists against American and Canadian members of the Communist Party now seem embarrassingly excessive and, in retrospect, were neither a useful deterrent nor an appropriate response. In the case of Omar Khadr, this lesson needs to be heeded once more.