Is Omar Khadr hours away from freedom?

Michael Friscolanti on the law and political manoeuvring around the latest legal showdown

Omar Khadr

Omar Khadr

Omar Khadr woke up this morning in a prison cell. By tonight, he could be a free man, sleeping in an unlocked room for the first time in nearly 13 years.

Or he could be on his way back to jail, wondering how things went so right—then suddenly so wrong.

Either way, some segment of his fellow Canadians will be celebrating, certain that justice has been served.

At its core, today’s court proceedings in Edmonton are about the Harper government’s obvious obsession with keeping Khadr behind bars until the very last day of his U.S. sentence (Oct. 30, 2018). Senior Conservatives say so themselves, repeating the same token line every time they square off with the former teenage combatant in a courtroom: He pleaded guilty to “heinous crimes,” and “we have vigorously defended against any attempt to lessen his punishment.” It doesn’t seem to matter that Ottawa has lost every legal showdown, including two separate trips to the Supreme Court. The appeals keep coming.

But, if Khadr is released by suppertime, it will be a question of law—not political manoeuvring, or pro-Khadr protesting—that ultimately sets him free.

Flashback to 2010, when Khadr pleaded guilty to five “war crimes” at a U.S. military commission in Guantánamo Bay, Cuba. In exchange for a further eight years behind bars, his plea deal included a promise that he could apply to serve the bulk of that time in Canada, the country of his birth. Though rarely on the public’s radar, such nation-to-nation prison transfers are common; over the past decade, in fact, corrections officials have processed nearly 2,300 applications from citizens detained in foreign jails hoping to finish their sentences on home soil. (Not surprisingly, the vast majority of requests come from Canadians in U.S. custody.)

Such relocations are governed by the International Transfer of Offenders Act (ITOA), as well as treaties signed with dozens of countries, including the United States. The Act clearly states that Ottawa will only approve a transfer if the foreign sentence is final (i.e., no outstanding appeals), and that Canada has no jurisdiction to alter the sentence in any way. Which means that, when Khadr was flown home in September 2012, his eight-year sentence was to remain exactly that.

Safely back in Canada, however, Khadr did launch an appeal, asking a special review court in Virginia to toss out his Guantánamo convictions. Simply put, his lawyers contend he was charged with offences that didn’t exist when he was shot and captured on an Afghanistan battlefield in 2002—and that, if he did toss the grenade that mortally wounded Sgt. 1st Class Christopher Speer, it was an act of war, not a war crime.

With that appeal pending, Khadr’s legal team then attempted what appeared to be a Hail Mary: They asked an Edmonton judge to release their client on bail while his U.S. appeal inched through the system. Every Canadian prisoner with an active appeal has the right to seek bail, they argued, before presenting the judge with a long list of community members willing to help Khadr, now 28, adjust to life on the outside. One of his longtime lawyers, Dennis Edney, even took the rare step of offering his notorious client a bedroom in his home.

In response, federal lawyers didn’t suggest that Khadr poses a danger to society, or that he continues to harbour the radical Islamist beliefs passed down by his late father, a senior al-Qaeda associate. They focused instead on the transfer regime, claiming the rules clearly prohibit a convict like Khadr—who was only repatriated to Canada because his sentence was final—from subsequently seeking bail. “Anyone who is transferred under the Act falls under the same category as Mr. Khadr,” Bruce Hughson, a Justice Department lawyer, argued at the March bail hearing. “Mr. Khadr is not unique.”

Justice June Ross concluded otherwise, saying Khadr’s situation was actually quite unique—and that denying him the right to apply for bail in the midst of his criminal appeal would breach his Charter rights. “The applicant has put forward unchallenged evidence that he is a strong candidate for judicial interim release,” the judge wrote in her ruling, released April 24. “He has a 12½-year track record as a model prisoner, and a release plan supported by educators, mental health professionals and his lawyers.”

Canadians were still digesting the initial headlines when Public Safety Minister Steven Blaney announced the inevitable: that Ottawa was “disappointed” with the ruling, and planned yet another costly appeal. “Our government will continue to work to combat the international jihadi movement, which has declared war on Canada and her allies,” the minister said.

Which brings us to this morning. The government isn’t just asking Alberta’s highest court to consider its appeal. It sought an emergency hearing—to be held just hours before Justice Ross was to rule on Khadr’s release conditions, then set him free—to request that he remain in prison until the appeal is heard. Letting him out, the government claims, would cause “irreparable harm” because “foreign states may be much less likely to agree to transfer Canadian offenders to Canada out of concern that foreign sentences will be enforced in a manner not contemplated by the parties.”

The entire prison transfer system could potentially crumble, in other words.

But the government’s latest arguments don’t stop there. In court documents filed late Monday in advance of today’s hearing, Ottawa now suggests what it did not at the original bail hearing: that releasing Khadr in such an “abrupt” fashion “poses an undue risk that is not in the public interest.”

“The protection of society is best served through [Khadr’s] gradual release into society,” reads the government’s memorandum of argument. “A cascading approach to [Khadr’s] reintegration is especially necessary for him, as well as for Canadian society in general, given his disruptive family background, years of incarceration, significant negative events and radical influences in his life, his inexperience in the public domain, and the unpredictability of his reaction to life as an adult outside a structured environment.”

Some would say the opposite is true: that those very same factors—his dysfunctional family, the years he lost in prison, his utter unfamiliarity with freedom—are exactly why he should be let out. Today.