Omar Khadr has once again been vindicated by the courts. The unanimous ruling by the Alberta Court of Appeals affirms what Omar's lawyers and supporters have maintained since his 2012 repatriation -- that he has been illegally and unlawfully held in a federal prison. For those who value a fair judicial system and the rule of law, it is incomprehensible that despite previous rulings in his favour, Omar is still incarcerated and fighting his way through the courts.
Successful challenges launched by Omar's lawyer, Dennis Edney, include the U.S. Supreme Court ruling that the U.S. Pentagon military commissions were unconstitutional; the Supreme Court of Canada (2008) ruling that the conduct of Canadian interrogators violated Omar's fundamental human rights, the Canadian Charter of Rights and principles of fundamental justice; the Federal Court ruling (2005) that Canadian agencies (including CSIS) had violated Omar's Charter rights by turning information over to his U.S. captors; and the Federal Court of Appeal (2009) ruling that required the Canadian government to arrange for Omar's immediate return.
In Tuesday's judgement, the Appeals Court upheld a habeas application by Edney that Omar be transferred from a federal penitentiary to a provincial correctional facility for adults where he would have access to educational and parole opportunities. The judgment was clear that last November Judge Rooke had "...erred in law in finding that Khadr was properly placed in a federal penitentiary under the International Transfer Agreement [ITOA]" and concluded that "Khadr ought to have been placed in a provincial correctional facility for adults in accordance with the ITOA."
The decision was in response to an appeal last April by Edney to reverse Rooke's ruling which had denied Omar's transfer. The 34 page judgement referred to the federal government's arguments as "pure speculation" and not supported by the International Transfer Agreement between Canada and the U.S., Youth Criminal Justice Act nor the sentence imposed by the Military Commission.
Tuesday's judgement provided other criticism of the court's decision: "...obtaining jurisdiction to enforce a sentence is quite different from relying on selective bits and pieces of Canadian sentencing law in an attempt to convert a foreign sentence into something it never was when imposed in the foreign state."
Although narrow in scope and dealing only with the terms of the ITOA, the judgement rightly brings into question the legitimacy of the original "charges" against Omar in a corrupt, ex-judicial U.S. military commission "...the evidence against Khadr would have been excluded in a Canadian court. The legal process under which Khadr was held and the evidence elicited from him have been found to have violated both the Charter and international human rights law..."
This court victory comes within days of a memo released by the U.S. Department of Justice which reveals that the U.S. and Canada knew in 2010 that the charges brought against Omar by the military commission were not supported by law. In a recent analysis of the implications of the memo "U.S. and Canada knew charges against Omar Khadr were bogus" Gail Davidson, Lawyers' Rights Watch Canada, provides a shocking indictment of a decade of Canadian government complicity in the abuse of a vulnerable young Canadian and states:
The government of Canada knew that:
Charges against Omar Khadr were bogus and could never be upheld by a properly constituted court;
Confessions were extracted from Omar Khadr through the use of torture and other prohibited treatment including threats, beatings, psychological torment, incommunicado and arbitrary detention, prolonged solitary confinement, denial of habeas corpus, denial of the right to legal representation, denial of timely and confidential legal representation; denial of access to a properly constituted, impartial and independent tribunal and denial of fair trial rights;
Omar Khadr was and is properly presumed to be a 'prisoner of war' and is entitled to the protection of international and Canadian law including the Geneva Conventions;
Omar Khadr was illegally captured, transported to and imprisoned in Guantanamo Bay in violation of all applicable international law and Canadian law;
Omar Khadr was a child at the time of capture and as such was entitled to special protections ensuring all his rights including his right to liberty.
While we celebrate the latest court victory for Omar, we know that the only just and lawful response is his immediate release from jail. Unfortunately, there are government statements threatening an appeal and many legal challenges looming.
For so many years while Canadians have applauded and admired Dennis Edney as he challenged the U.S. and Canadian governments, battled his way through the courts and fended off the most hateful attacks on his young client, how many of us have thought of the financial and emotional cost that he and his family have paid over the past decade, while he defended Omar as if he were his own son. With several more cases on the horizon, the fundraising campaign to support Edney pro bono's work urges every Canadian who values the rule of law to show support of Edney's relentless struggle for justice for Omar by helping to cover his mounting legal costs.
If you can, please donate here.
Kathy Copps is a retired B.C. teacher and member of the Vancouver Free Omar Khadr Now Committee.