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Khadr, cont’d

A fair bit of news about Omar Khadr this week.  News outlets reported last evening that Omar Khadr has fired his American civilian attorneys, Barry Coburn and Kobie Flowers, to protest the illegitimacy of the military tribunals where he’s scheduled to be tried next month.  The Globe and Mail spoke with Khadr’s Canadian lawyers:

“Omar has lost all hope of a fair trial in Guantanamo, he can see that the trial is rigged,” said Nate Whitling, one of his Canadian lawyers, explaining Mr. Khadr’s decision to dismiss his legal team.

“We tried desperately to talk him out of it,” Mr. Whitling said, adding the Mr. Khadr, 23, was so upset by the pre-trial appearances of interrogators who tortured and abused him after he was captured in 2002 that he chose to cease participating in the tribunals.


The fired American civilian attorneys, Mr. Coburn and Kobie Flowers, are Mr. Khadr’s third team of defence lawyers in the long and tortuous case. Mr. Khadr “was not mad at them, he knew they were doing a good job for him,” Mr. Whitling said.

The decision to dismiss his lawyers and, apparently, decline to appear in the courtroom reflects Mr. Khadr’s view that the military tribunals are a fraud, Mr. Whitling said.

“What’s the point of defending myself in such a system, it’s a charade,” Mr. Whitling quoted Mr. Khadr as saying.

Dennis Edney, another of Mr. Khadr’s Canadian lawyers said he “is a young man who has lost all faith in the process. We have participated in Canada in numerous legal processes, with numerous victories and yet to date it hasn’t helped force the Canadian government to do anything.’’

Khadr’s decision comes on the heels of a decision issued in Canada’s Federal Court on Monday, which found that the federal government had a continuing obligation to seek a remedy for its violations of Khadr’s Charter rights.  As you may recall, in January, the Supreme Court of Canada found that the government had unjustifiably infringed upon Khadr’s s. 7 rights, and so long as he remained in U.S. custody and subject to the military commissions process, the s. 7 violation would be ongoing.  The SCC declined to make an order compelling the government to seek Khadr’s repatriation, instead permitting the government to make its own decision as to how best to rectify the constitutional violation.

The government’s response was ineffective, at best, and insulting to the Court and Canadians, at worst.  Rather than seeking Khadr’s repatriation, which the SCC found would be a way of curing the s. 7 violation, the government simply issued a diplomatic note to the United States, requesting that it exclude evidence obtained from CSIS interrogations from the case against Khadr.  The United States declined to honor that request, and Canada made no further moves to bring itself into compliance with the SCC’s ruling.

Canada’s decision to take no further action to rectify its ongoing violation of Khadr’s s. 7 rights became the subject of judicial review in the Federal Court.  Mr. Justice Zinn’s decision is worth reading in its entirety, but the upshot is that the FC found that Khadr is entitled to procedural fairness and natural justice in Canada’s process of determining a remedy for its breach of his s. 7 rights. (Mr. Justice Zinn, by the by, was also the judge who ordered Abousfian Abdelrazik’s repatriation.)

To that end, the government is required to advise Khadr by next Monday of “all untried remedies that it maintains would potentially cure or ameliorate its breach of Mr. Khadr’s Charter rights as has been determined by the Supreme Court of Canada”.  In turn, Khadr has 7 days after receiving the government’s advice as to potential remedies to provide his written submissions as to (1)  other potential remedies not listed by the government; and (2) his views on the government’s proposed remedies.

Following that, the government is ordered to undertake a “potential curative remedy” as soon as possible, and, importantly:

to continue advancing potential curative remedies until the breach has been cured or all such potential curative remedies have been exhausted, following which it is to advance potential ameliorative remedies until such time as the breach has been reasonably ameliorated or all such remedies have been exhausted.

What this means is that Canada must keep trying to cure the s. 7 breach, and if it should find itself unsuccessful in doing that, then it must take action to ameliorate the s. 7 breach.  A powerful decision, though as observers have noted, one very likely to be appealed by the federal government.