Canadian appeal court ruling clears way for Khadr trial

A court ruling that would have obliged Ottawa to repatriate Omar Khadr or intercede on his behalf while he’s in U.S. custody meddled with the federal government’s right to call the shots on foreign affairs, a federal appeal court judge says. Federal Court of Appeal judge Pierre Blais’ ruling released this week effectively clears the way for the 23-year-old Canadian detainee to face trial in Guantanamo Bay next month.

Mr. Justice Russell Zinn of the Federal Court earlier this month gave the government a week to come up with a list of ways to help protect Mr. Khadr’s rights. Ottawa appealed that ruling, and this week, Judge Blais sided with the government.

Judge Zinn’s order “results in a kind of judicial supervision over any diplomatic action that Canada may take in relation to [Mr. Khadr],” he wrote in the court’s decision.

“I am not at all convinced that Justice Zinn does effectively have the power to ‘impose a remedy.’”

Moreover, Judge Blais ruled that forcing the government to intercede diplomatically could have caused Ottawa irreparable harm. It would “result in improper interference by the court in the conduct of foreign relations, and this harm cannot be reversed … nor be compensated by damages.”

The quick ruling – both sides argued it last Friday by phone – comes less than two weeks after Ottawa said it would appeal the Federal Court decision that obliged the government to remedy breaches of Mr. Khadr’s Charter rights.

And it leaves Mr. Khadr’s Canadian legal team wondering whether it’s worth pursuing an appeal given how quickly the trial is approaching.

“We asked to have an expedited hearing and we haven’t really gotten a response to that except it’s not going to happen before the trial in Guantanamo. So at this point, we’re just trying to decide whether we’re even going to bother pursuing this appeal – it’s kind of a done deal,” said Nate Whitling, one of two Edmonton-based lawyers acting for Mr. Khadr in Canada.

“What can you say? Every judge has a different opinion. The question is, who’s going to suffer irreparable harm pending the appeal? And obviously the answer to that question is Omar. … The judge is obviously much more concerned with the supposed harm the government would have to suffer by having to make that request.”

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