Canadian Supreme Court Rules That Omar Khadr Was A Juvenile Prisoner, Not An Adult

15.5.15

Former Guantanamo prisoner Omar Khadr speaking to the media after his release from prison on bail on May 7, 2015. Photo made available by Michelle Shephard of the Toronto Star on Twitter.How much money will the Canadian government spend in its futile effort to demonize Omar Khadr? A week after the former child prisoner — now 28 years old — was freed on bail after nearly 13 years behind bars (ten years in Guantánamo, and the rest in Canada), winning over numerous Canadians with his humility as he spoke in public for the first time, the Canadian government, which had unsuccessfully argued that releasing him on bail would damage its relations with the US, faced another humiliating court defeat, this time in Canada’s Supreme Court.

The government was claiming that Omar — just 15 years old when he was seized after a firefight in Afghanistan, where he had been taken by his father — had been sentenced as an adult, not a juvenile. The intention was that, if Omar is to be returned to prison if his appeal against his conviction in the US fails (which, it should be noted, seems unlikely), he would be returned to a federal prison. The ruling followed an appeals court ruling in Omar’s favor last July, which I wrote about here.

However, the Supreme Court ruled that Omar had been sentenced as a juvenile, and that, if he were to be returned to prison, it would therefore be to a “provincial reformatory,” as the Globe and Mail described it.

In the Toronto Star‘s words, “The high court said Ottawa made a grave mistake in how it interprets the International Transfer of Offenders Act in Khadr’s case, and he should never have been placed in the federal penitentiary system, given the American eight-year sentence he faced. The judges said it is clear under Canadian law Khadr should have been placed “in a provincial correctional facility … for adults.”

Adding to the government’s humiliation, the court took “only a few minutes after the hearing ended to deliver its unanimous ruling from the bench,” as the Globe and Mail put it, adding, “Most rulings come several weeks after a case is heard.”

The Globe and Mail also noted that the symbolism of the ruling “looms larger than the practical effects,” adding, “The Canadian government was intent on demonstrating, as it has since the United States military captured Mr. Khadr on an Afghan battlefield when he was 15, and accused him of throwing a grenade that killed a soldier, that it believes he should be punished as severely as the law allows. And the Supreme Court said that the law is much less severe than the federal government thinks it is.”

As Chief Justice Beverley McLachlin explained, the court’s ruling was “a straightforward matter,” as the Globe and Mail described it, the reasoning being that a US military commission had “sentenced Mr. Khadr to eight years in prison for the war crime of murder, and the mandatory adult penalty for murder in Canada is life. Therefore it had to be a juvenile penalty.”

In contrast, the Canadian government had tried to argue that Khadr “had received five concurrent penalties of eight years for murder and other charges,” but the judges “expressed bafflement” at this argument. Justice Marshall Rothstein, described as a conservative member of the court, said, “We can’t slice and dice the eight years.”

This was Omar Khadr’s third victory in Canada’s Supreme Court. In 2008, after he had been held by the US for six years, the court “ruled unanimously that the government had to disclose all records of interviews conducted by Canadian officials with him, and information given to US authorities,” and in 2010 the court ruled that interrogations undertaken by Canadian agents at Guantánamo in 2003, when he was just 16, after three weeks of sleep deprivation, “offends the most basic Canadian standards about the treatment of detained youth suspects.”

Omar wasn’t present at the ruling, but his lawyers, Nathan Whitling and Dennis Edney, “rejoiced,” as the Toronto Star put it. Edney said he was surprised that the ruling had come so quickly. “Perhaps there’s a message there, less for myself and more for this government, that continues to waste taxpayers’ dollars persecuting my client,” he said.

He also said Khadr “has a new bike, hasn’t stopped cycling since he got it, and has been embraced by neighbours” in the community where he is living with Edney and his wife as part of his bail conditions.

The Toronto Star also noted that Edney “did not backtrack from his remarks last week that put the blame squarely on Prime Minister Stephen Harper for Khadr’s plight having been ‘abandoned’ in Guantánamo as a child.”

Edney said, “I’ve come to the conclusion, an honest conclusion felt by many, many Canadians throughout Canada, that Mr. Harper is a bigot, and Mr. Harper doesn’t like Muslims, and there’s evidence to show that.”

He added that Khadr is moving on with his life. “What happens next is he gets on with life,” he said, adding that Khadr “will go to university, and he will start to adjust and he will keep a low profile. He wants to be part of Canada and he doesn’t want the publicity.”

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers). He is the co-founder of the “Close Guantánamo” campaign, the co-director of “We Stand With Shaker,” calling for the immediate release from Guantánamo of Shaker Aamer, the last British resident in the prison, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

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18 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    More good news for Omar Khadr – and bad news for the Canadian government – as the Supreme Court ruled decisively yesterday that Omar’s eight-year sentence at ‪‎Guantanamo‬ should be regarded as a sentence for a juvenile, and not an adult. The ruling, which normally takes weeks, was delivered immediately after the hearing, providing another humiliation for the Harper government, whose Supreme Court defeat was its third in dealing with Omar’s case. Will the government ever give up?

  2. Andy Worthington says...

    MJ Tallon wrote:

    They might give up, or at least attack less aggressively, but not likely until after October’s election. They need to fight to maintain some credibility … it’s not easy for them, with the Court all but scoffing at them for wasting time and money on these actions the government knows it can’t win.

  3. Andy Worthington says...

    Thanks, MJ. It would be nice if there was some way of holding senior officials accountable for wasting taxpayers’ money, but that’s obviously a pipe dream!

  4. Andy Worthington says...

    Monique D’hoohge wrote:

    absolutely brilliant

  5. Andy Worthington says...

    Yes, more great news for Omar, Monique! It’s well deserved!

  6. Andy Worthington says...

    After my friend Jan Strain shared this, I wrote:

    Thanks for sharing, Jan. Good to see the Canadian government getting so humiliated. They deserve it.

  7. Andy Worthington says...

    Jan Strain wrote:

    Exactly, Andy – Time for the US to get a little of that too.

  8. Andy Worthington says...

    Oh, that would be great, wouldn’t it, Jan​, but it’s depressing how few options there are for any kinds of accountability in the US. The last time the US Supreme Court stood up against the “war on terror” was seven years ago, in Boumediene v. Bush, when they confirmed that the Guantanamo prisoners had constitutionally guaranteed habeas corpus rights. But then, when the D.C. Circuit Court fatally undermined that ruling, they refused to get involved. It’s a great shame. This was my article about the Supreme Court’s failure, back in June 2012: http://www.andyworthington.co.uk/2012/06/16/the-supreme-court-abandons-the-guantanamo-prisoners/

  9. Andy Worthington says...

    Shoubhik Bose wrote:

    Omar must be silently smiling thinking finally things seem to be on his side 🙂

  10. Andy Worthington says...

    Nice comment, Shoubhik. Yes, with Dennis and Pat Edney looking after him I’m sure he’s feeling positive.

  11. Andy Worthington says...

    Jamal Ajouaou wrote:

    Truth & Justice will set you free .

  12. Andy Worthington says...

    Thanks, Jamal. Good to hear from you.

  13. Andy Worthington says...

    Jamal Ajouaou wrote:

    thanks to you and all them good people out there who have made truth and justice became their battle ground ,thanks to you Andy for all the hard work, finally have paid off with many good news, now we sea judge nations have woke up from both angles , either those who been manipulated to committee horrible acts and those who try to fight it ,they took the matter on their own hand and forgot the role of law and justice . good to hear from too , I’m very happy for Omar , I pray that he would be able to get on with his life , lucky for him he is young and when we are young we can move on in life easy with less pain the those who happened to be older

  14. Andy Worthington says...

    Ah yes, the benefits of youth, Jamal. Ah, to be 28 again – but with what I know now!
    Here’s Ronnie Lane singing “Ooh La La” – “I wish that I knew what I know now when I was younger”:
    https://www.youtube.com/watch?v=cpSlT2BVvGc

  15. Paul says...

    Andy,

    There’s a slightly mangled sentence in the second paragraph: “just 15 years old when he was seized ate a firelight”.

    Regards.

  16. Andy Worthington says...

    Thanks, Paul. Yes, the auto-correct settings on TextEdit do weird things sometimes, and I don’t always catch them. Thanks for being so observant!

  17. arcticredriver says...

    Thanks Andy!

    Yes, recent developments have brought wonderful news for Omar.

    A further positive development is that Peter MacKay, one of Stephen Harper’s ministers, congratulated Omar on explicitly confirming that he rejects terrorism.

    MacKay and Harper have an odd, strained, history. Several decades ago a new political party, the “Reform Party” arose, in Alberta, Canada’s most conservative Province. As that party grew in popularity it split the right wing vote. It eventually grew larger and more powerful than the original Conservative party, the “Progressive Conservatives”. A little more than a decade ago MacKay was the leader of the original PC party. IIRC, when he ran for leader he promised he would not consider merging with the reform party. But he did.

    Harper never would have become Prime Minister so long as two right wing parties competed for right wing voters.

    Everyone seems to recognize that part of the quid pro quo for MacKay’s agreement to merge the two parties was that he would be guaranteed a cabinet portfolio. Although the merged party took the name of the older established party, a disproportionate fraction of the cabinet members are from the Reform Party.

    Even if he is a former leader of the other party, who has a quid pro quo that makes him unfireable, I applaud his break with Harper. I see it as a crack in the solidarity with the indefensible position that Harper has forced on his cabinet.

  18. Andy Worthington says...

    Thanks for that insight into the Canadian political situation, arcticredriver – a nuance I wasn’t aware of. Yes, any break with the disgusting hardline approach of Harper and his colleagues is certainly to be applauded.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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