Top court questions Ottawa's motive on Khadr file

This is from the Globe and Mail. Other articles have pointed out much more clearly that the interrogation itself was illegal. In spite of the pleas of Canadian lawyers and being the only country not to intervene on behalf of its citizens imprisoned in Guantanamo Harper does nothing. Canada has reduced itself to the level of the U.S. That is not compliment. Fortunately, there are still many in the U.S. and Canada who recognise the irony of two countries who claim that they stand for human rights nevertheless supporting a legal process which resembles the Star Chambers of old. It is fortunate that we still have some legal basis to challenge the government. The U.S. lawyers for Khadr have also done excellent work on his behalf. Whether it will make any difference at all is in some doubt. When the process failed the U.S. earlier and charges were thrown out because the accused had not been shown to be enemy combatants the authorities just rewrote the script.

Top court questions Ottawa's motive on Khadr file
Justices pepper federal government on how and why it passed on sensitive information to U.S. prosecutors
KIRK MAKIN

JUSTICE REPORTER

March 27, 2008

OTTAWA -- The federal government's motives in the Omar Khadr terrorism case came under sustained fire from the Supreme Court of Canada yesterday, as a government lawyer sought to justify its suppression of evidence.

Observers in the packed courtroom had barely settled into their seats for the historic case, when several judges began to pepper Justice Department lawyer Robert Frater with questions as to how and why sensitive information was passed on to U.S. prosecutors.

They challenged Mr. Frater to reveal whether Canada sought restrictions on how the United States could use the information - gleaned during three interrogations that Canadian security agents held with Mr. Khadr in 2002.

"Obviously it was shared for a purpose," Mr. Justice Ian Binnie pressed Mr. Frater. "You are the one who knew how it was shared, and whether there were restrictions."

Mr. Khadr was captured by U.S. soldiers in Afghanistan on July 27, 2002, when he was 15. He was charged with murdering U.S. Army Sergeant Christopher Speer by throwing a hand grenade, and has been held in the U.S. military detention facility at Guantanamo Bay, Cuba, since October of 2002.

Bolstered by legal intervenors, Mr. Khadr's defence team is trying to show that he was illegally interrogated, and that his responses became the underpinning for the charges.

In one of several harsh indictments of the government yesterday, B.C. Civil Liberties Association lawyer Joseph Arvay said the affair is a "classic case" of why the courts must come to the aid of unpopular citizens abandoned by their government.

"We are dealing with an individual who is in this black hole in Guantanamo Bay; for whom the U.S. political process doesn't work; who may be seen in Canada as a pariah; and for whom the Canadian political process doesn't work," Mr. Arvay said.

Mr. Frater insisted that the interrogation was a routine security procedure, and that it would be an unwarranted leap of logic to assume that it played a role in the U.S. decision to prosecute.

But several judges prodded him to explain the way the information was passed to the United States - rather than making the Khadr defence team and the court itself try to guess what took place.

"The issue is: Did it have an impact on the prosecution?" Madam Justice Rosalie Abella told Mr. Frater.

"Here you have an opportunity to tell us," Mr. Justice Morris Fish said. "It is not too late. If there is information the court needs - or to put it less urgently, ought to have - I don't understand your concern about giving evidence. Counsel, over the years, have many times given admissions of fact."

But Mr. Frater insisted, "I would be committing exactly the same sin I've accused the other side of committing - going outside the court record to give evidence."

Mr. Frater portrayed Canada as being little more than a bystander in the case. He said that if Mr. Khadr wants to obtain transcripts of his interrogation - information he ought to have no trouble remembering, anyway - then he should request it in the U.S. court system.

Mr. Frater also argued that ordering the disclosure of evidence to Mr. Khadr would create a dangerous precedent that would enable any Canadian charged abroad to make disclosure demands.

In a submission for the Criminal Lawyers Association, lawyer John Norris said the government cannot shirk its responsibilities under the Charter of Rights just because its officials are outside the border.

"Whether or not Canadian officials took the Charter with them when they went to Guantanamo Bay, it was undoubtedly waiting for them when they got home," he told the court.

After the court reserved its decision in the appeal, Dennis Edney, a lawyer for Mr. Khadr, told reporters that the entire case has begun to unravel as more information seeps out involving alleged torture Mr. Khadr suffered and the unreliability of the evidence against him.

"What does it take for our government to right this wrong?" he asked.

Mr. Edney said that part of the problem Mr. Khadr faces is public outrage over pro-al-Qaeda statements from his family members in the past.

"It's a shame that Omar Khadr should suffer because of his family ... and that Canadians can't distinguish between a man suffering in horrible conditions in Guantanamo Bay and family members who say stupid things."