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Cablegate: Appeals Court Reaffirms Canada Must Seek Khadr's

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UNCLAS SECTION 01 OF 02 OTTAWA 000629

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: PREL PHUM PTER CU CA
SUBJECT: APPEALS COURT REAFFIRMS CANADA MUST SEEK KHADR'S
REPATRIATION FROM GUANTANAMO BAY

REF: OTTAWA 313

1. (SBU) Canada's appellate court on August 14 upheld a
lower court ruling requiring the government to seek the
repatriation of Guantanamo detainee and Canadian citizen Omar
Khadr. According to the Prime Minister, the government will
study the decision before deciding on next steps. An appeal
to the Supreme Court remains a strong likelihood. End
Summary.

2. (U) In a 2-1 decision, the Federal Court of Appeals of
Canada upheld a lower court's ruling (reftel) that the
actions of Canadian officials interviewing Canadian citizen
Omar Khadr in captivity at Guantanamo Bay so violated his
rights under the Canadian Charter of Rights and Freedom that
the only effective remedy would be for the government to seek
his repatriation. The justices admitted that the legal
issues in this case were "narrow" and the "facts are highly
unusual." However, they agreed that interviews in 2003 and
2004 at Guantanamo Bay by agents of the Canadian Security
Intelligence Service and the Department of Foreign Affairs
and International Trade -- knowing that U.S. military
officials were using sleep deprivation techniques in their
own interrogations -- indicated that they were "participating
in a process that was illegal under the laws of the United
States and contrary to Canada's international human rights
obligation. For that reason, the Charter was engaged by
their conduct," The Appeals Court also judged that "there is
no factual basis for the Crown's argument that a court order
requiring the Government to request the return of Mr. Khadr
is a serious intrusion into the Crown's responsibility for
the conduct of Canada's foreign affairs," especially since
even the Crown had conceded in oral arguments that making
such request would not damage Canada's relations with the
U.S., nor "pose a threat to Canada's security." The Court
highlighted that, contrary to the Crown's oral argument that
there was "only a remote possibility that the United States
would comply" with such a request, "the fact (is) that the
United States has complied with requests from all other
western countries for the return of their nationals from
detention in the prison at Guantanamo Bay."

3. (U) In a lengthy dissent, Justice Nadon concluded that
the lower court justice had "erred in determining that Canada
had failed to protect Mr. Khadr" and "erred in regard to the
appropriate remedy." He underscored that "Canada did not
participate neither in "(Mr. Khadr's) arrest, transfer or
detention." and that "the steps taken by Canada from 2002 to
2008 are sufficient to satisfy Canada's duty to protect Mr.
Khadr." He commented that the lower court's decision
requiring the government to seek repatriation constitutes a
"direct interference into Canada's conduct of its foreign
affairs," which should "be left to the judgment of those who
have been entrusted by the democratic process to manage these
matters on behalf of the Canadian people."

4. (U) In a press conference in Chelsea, Quebec on August
14, Prime Minister Stephen Harper noted the "split decision"
of the appeals court and added that the Department of Justice
was "examining" it and that the government would wait for
DOJ's "analysis and recommendations." He declined to
speculate whether the government would make an appeal to the
Supreme Court of Canada. Separately, Liberal Party foreign
QSupreme Court of Canada. Separately, Liberal Party foreign
affairs critic Bob Rae told the media that "this is the time"
for the government finally to seek to bring Mr. Khadr back to
Canada.

5. (SBU) In a discussion with CDA on the eve of the
decision, a senior official of the Prime Minister's Office
predicted that the government would appeal to the Supreme
Court if it lost at the appellate level. According to an
official of the Privy Council Office on August 14, the
government was still trying to "digest" the decision, but he
took note our informal request for the government to consult
privately with us before making public any possible request
for repatriation.

6. (SBU) Comment: The vigorous dissent opinion should give
the government some hope that an appeal to the Supreme Court
could be successful, and could -- not incidentally -- also at
least delay action until the next steps become clearer in the
legal procedures against Mr. Khadr by the U.S. military
authorities. Mr. Khadr's family remains deeply unpopular in
Canada, although there is some sympathy for him since he was
only 15 years old at the time of his capture. There would be
virtually no political blowback domestically for the
Conservative Party if the government chooses to pursue an

OTTAWA 00000629 002 OF 002


appeal, making this a strong likelihood.

Visit Canada,s North American partnership community at
http://www.intelink.gov/communities/state/nap /

BREESE

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