Why Omar Khadr isn’t a free man just yet

Despite Friday’s monumental decision, Omar Khadr’s final day in prison is as much a mystery as it was on Thursday.

Omar Khadr

Omar Khadr

Yet again, Omar Khadr has convinced a Canadian court to rule in his favour. And yet again, the practical result may be the same as always: the 28-year-old still locked behind bars, not quite sure when he’s getting out.

His latest legal victory came Friday, when an Edmonton judge concluded the former Guantanamo Bay inmate—a “model prisoner” for nearly 13 years—deserves bail while he appeals his war-crimes convictions south of the border. Incarcerated for more than 4,600 days and nights, freedom suddenly seemed imminent.

But while fellow citizens were still digesting the headlines, Stephen Harper’s Conservatives announced the inevitable: that Ottawa was “disappointed” with the ruling, and planned to appeal. “Omar Ahmed Khadr pleaded guilty to heinous crimes,” said a prepared statement from Public Safety Minister Steven Blaney, repeating the government’s media lines on the file. “We have vigorously defended against any attempt to lessen his punishment for these crimes.”

Not so fast, in other words.

Khadr is scheduled to appear at another court hearing May 5, when lawyers for both sides will debate the conditions of his bail, such as curfew and approved associates. With a government appeal pending, however, Ottawa could request a stay of Justice June Ross’s ruling, ensuring Khadr stays in a cell while Alberta’s Court of Appeal weighs in on the case (a process that will certainly drag on for many more months).

Simply filing the appeal won’t be enough to postpone Khadr’s freedom. Federal lawyers would need to convince Justice Ross that their appeal raises a “serious issue,” and that releasing Khadr before that appeal is heard would trigger some kind of “irreparable harm.” If the judge refuses to issue a stay, the feds can then proceed one step higher, asking the appeal court to halt Khadr’s release until the matter is settled.

Bottom line: despite Friday’s monumental decision, Khadr’s final day in prison is as much a mystery as it was on Thursday.

“He, quite properly, is being cautious,” says his long-time lawyer Dennis Edney, who has famously offered Khadr a bedroom in his Edmonton home—whenever he gets out of his current residence at Bowden Institution, a medium-security institution in Innisfail, Alta. “He is saying to himself: ‘I’ll believe it when it happens.’ ”

Nathan Whitling, another Edmonton lawyer who fought for years on Khadr’s behalf, is not the type to try to predict future court rulings. But he will say that proving “irreparable harm” would be a tall order for Ottawa. “That means some terrible harm is going to occur between his release and the completion of the appeal,” Whitling says. “That’s going to be difficult for them to show because they’ve never attempted to argue that he poses a threat to anyone.”

Not in court, at least. Despite Blaney’s scripted remarks—that Khadr committed “heinous crimes,” and that the Harper government “will continue to combat the international jihadi movement, which has declared war on Canada and her allies”—federal lawyers didn’t actually oppose his bail application on the grounds he’s a danger to the public. Their arguments were largely technical, namely that granting Khadr bail would breach Canada’s promise to the U.S. to enforce the sentence he received at Guantanamo Bay.

At this point, most Canadians have heard some version of the Khadr saga. The 15-year-old son of a senior al-Qaeda associate. The 2002 firefight in Afghanistan. The grenade toss that killed a U.S. soldier. In 2010, he pleaded guilty to five offences under the so-called Military Commissions Act, including the battlefield murder of Sergeant 1st Class Christopher Speer. Key to the plea deal was a promise that Khadr could apply for a transfer to a Canadian prison, allowing him to serve the remainder of his eight-year sentence in the country of his birth. (He was flown out of Cuba in September 2012, a few days after this cover story appeared in Maclean’s.)

Khadr now insists that everything in the plea agreement is false (the fruits of U.S. torture) and that he only signed the document to escape Guantanamo. He is also appealing his convictions in front of a special court in Virginia, arguing that the “war crimes” he was charged with did not exist at the time of his capture—and that even if he did kill Sgt. Speer, it was war, not a war crime. It was under that backdrop Khadr appeared last month before Justice Ross, seeking bail.

Simply put, his lawyers argued that any Canadian prisoner with a pending criminal appeal has the right to apply for bail, and that Khadr’s U.S. case is inching along so slowly that a final ruling may not be issued by the time his sentence expires in October 2018. (As Whitling joked at the bail hearing: “We could all be retired by the time those appeals are done.”) Khadr’s lawyers also insisted he poses absolutely no threat to public safety, citing a long list of community supporters willing to assist in his reintegration to society.

The government countered by saying the legislation under which Khadr was repatriated from Cuba (the International Transfer of Offenders Act, or ITOA) does not permit bail applications. Only those prisoners “whose verdict and sentence may no longer be appealed” are eligible to return to Canada to serve their time, and if Ottawa knew Khadr was going to launch an appeal—and subsequently apply for bail—he never would have been accepted back home. “Anyone who is transferred under the Act falls under the same category as Mr. Khadr,” Bruce Hughson, a justice department lawyer, told the judge in March. “Mr. Khadr is not unique.”

Justice Ross ultimately decided the case was unique—and sided with Khadr. “I conclude that the right to seek bail pending appeal is a principle of fundamental justice,” she wrote in her 23-page ruling. “When an applicant’s liberty is at stake, as in this case, the right to seek bail pending appeal is guaranteed” under the Canadian Charter of Rights and Freedoms.

After crossing the jurisdictional hurdle, Justice Ross had to answer the second question: Should Khadr actually get bail? According to the Criminal Code, a key part of that analysis is whether his pending appeal is “frivolous,” and whether his “continued detention is not necessary in the public interest.”

Her conclusion was clear. “This is a circumstance where balancing a strong appeal and the public confidence in the administration of justice favour the same result,” she wrote. “Even though [Khadr] has pled guilty to serious offences he should be granted judicial interim release because he has a strong basis for appeal, and the risk to public safety is not such that it is in the public’s best interest that he remain in pre-appeal detention in a manner that could render his appeal irrelevant.”

Khadr, of course, is no stranger to positive Canadian court judgments. Twice, the Supreme Court has ruled that Ottawa breached his Charter rights, and the Federal Court recently allowed a significant expansion to his ongoing $20-million lawsuit against the government. Yet despite numerous legal victories, little about Khadr’s daily life has changed. He has moved prisons a few times, but he’s still an inmate after all these years.

“He knows very well that he’s not out yet and there’s more steps,” Whitling says. “He’s been through a heck of a lot of these things, and he knows better than to get his hopes up. None of us are counting our chickens.”

Look no further than Blaney’s press release, Whitling says. The minister made sure to point out that the NDP has “actively” tried “to force Canadian taxpayers to compensate” Khadr, while Liberal Leader Justin Trudeau hasn’t ruled out that possibility. The statement also fails to mention that Khadr’s days in custody are already numbered—whether he gets bail or not. He is eligible for statutory release in October 2016, and absolute release two years later.

“There is an outright level of malice towards Mr. Khadr, and we think the government uses him as a political punching bag to score points with their conservative support base,” Whitling says. “We think it’s time to move on and recognize that this is something that happened when this guy was 15 years old. It’s time to respect the decision of the courts.”

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