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The Toronto Star

Supreme Court of Canada to Hear Khadr Case

Decision to expedite appeal raises possibility of a hearing during an election campaign

Tonda MacCharles

OTTAWA - The Supreme Court of Canada has agreed to hear the Conservative government's appeal of orders to seek the return from a Guantanamo prison of 22-year-old Omar Khadr.

In addition, the high court agreed to a federal request to weigh the matter on an expedited basis, setting a date of Nov. 13 and raising the prospect of the court hearing the high-stakes case during a threatened federal election. The Liberals have already raised Khadr's treatment as a reason to reject the Conservative government.

"We feel very strongly that a Canadian is a Canadian is a Canadian, said Liberal leader Michael Ignatieff in Vancouver. He said the government never should have resisted a "range of court decisions" compelling it to act.

"We find it extraordinary that the Conservative government would take this right up to the Surpeme Court when we're talking about a Canadian citizen," Ignatieff said.

"Canadians have different views about Mr. Khadr's conduct, but that's not the issue. This man is a Canadian citizen. Guantanamo needs to be closed. Canadians believe we should do our part in closing Guantanamo. And why is the Conservative government resisting something that's clearly in Mr. Khadr's interest, and in the interest of global peace and security? Guantanamo's not exactly been a bright star in global human rights."

NDP critic Joe Comartin said the court's decision to hear the appeal is not a surprise and will now set out what a court's role is in correcting the actions or inaction of government officials where they are found to violate a citizen's Charter rights.

No one in the federal government would comment, including Justice Minister Rob Nicholson who repeatedly declined to address reporters questions at a news conference.

In response to this morning's decision, a spokesperson for Foreign Affairs Minister Lawrence Cannon released the identical talking points as were issued two weeks ago, when the Conservatives announced the decision to appeal.

Cannon's statement stresses the Conservatives adopted the position of two previous Liberal governments: that Khadr is accused of "serious crimes."

It said the Obama administration has not indicated whether it will proceed with Khadr's prosecution in light of the president's decision to close the Guantanamo detention camps.

The federal government is seeking to reverse orders this summer by a Federal Court and Federal Court of Appeal.

The Justice Department argues it would be a dramatic and fundamental change to allow courts to interfere with the ability of the executive branch of government to decide how to conduct matters of foreign policy and relations. Federal lawyers also argue that allowing the repatriation orders to stand would create a new, and undefined, positive "duty to protect" nationals imprisoned abroad that is not recognized in any international law nor under any other country's domestic law.

Now those issues will be decided by the country's top court in a ruling that could come within six months after the Nov. 13 hearing.

As is custom, the court's decision on the application for leave to appeal was released without reasons.

The Supreme Court takes on cases of "national importance" or cases where the law is unclear because of dissents on key legal issues in the lower courts.

The high court had ruled in 2008 that interviews conducted by Canadian CSIS and foreign affairs officials in 2003 and 2004 breached his Charter rights. It ordered the federal records of the interviews, which were shared with American authorities, disclosed to Khadr.

Khadr's Canadian lawyers had argued this time that the high court should not hear the federal appeal. They said the Khadr case was unique, and that the country's top court had already laid out the legal principles that the lower courts relied on to order Prime Minister Stephen Harper to return the young Toronto man to his home.

Khadr is a member of a notorious family whose father, Ahmed Said Khadr, was an Osama bin Laden supporter later killed by Pakistani forces.

Omar Khadr was arrested at age 15 in Afghanistan after a deadly gunfight at an al Qaeda compound left a U.S. special forces medic, Christopher Speer, dead.

Khadr's supporters argue he should be considered a "child soldier" who was indoctrinated by a domineering father, and should be brought back to Canada to be rehabilitated.

The Canadian government has long argued Khadr should face trial under the U.S. military justice system, which took custody of him immediately. Khadr was jailed first at Bagram military base and later in Guantanamo Bay, where he was subjected to a "frequent flyer" program of sleep deprivation to prepare him for aggressive questioning.

That treatment was known to Canadian officials just prior to the third interview conducted by a Canadian foreign affairs official in March 2004.

The U.S. administration is still weighing what to do with Khadr's case, which is set to resume later this month, in light of a decision by U.S. President Barack Obama to shut down the Guantanamo Bay prison.

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