A Federal Court judge has ordered Canadian intelligence to cease questioning Guantanamo Bay's youngest prisoner, in a decision criticizing counterterrorism agents for flouting the Canadian Charter of Rights and Freedoms.
In a ruling released this week, Mr. Justice Konrad von Finckenstein describes 18-year-old Omar Khadr's detention as "one of these rare, exceptional cases where granting an injunction is required to prevent a potential grave injustice," given that the "conditions at Guantanamo Bay do not meet Charter standards."
Canadian spies have spoken to Mr. Khadr on several occasions since U.S. forces arrested him as a 15-year-old soldier fighting for al Qaeda-aligned forces in Afghanistan. Years earlier, his fundamentalist parents moved him and his siblings from Toronto to expose their children to the values of the Taliban and live in a compound with Osama bin Laden.
After the U.S. invasion, Mr. Khadr was shot three times during a 2002 battle in which he is reported to have killed an American soldier with a grenade. Along with hundreds of prisoners caught in Afghanistan, Mr. Khadr was deemed an enemy combatant and sent to the controversial U.S.-run prison camp in Cuba.
Though the Americans have never clarified his legal status or charged him, agents from the Canadian Security Intelligence Service and the Department of Foreign Affairs and International Trade have travelled to Guantanamo at least three times to speak to Mr. Khadr, with an eye to furthering their own investigations.
Such intelligence-gathering visits by Canadian officials are off as a result of the court ruling.
"I am delighted for Khadr in the sense that we get some relief for him," lawyer Dennis Edney said yesterday.
"It's disgraceful the Canadian government won't come to his rescue, but thank goodness the Canadian courts will."
The U.S. government may regard Guantanamo Bay as a limbo where standard legal protections for prisoners do not apply, but Judge von Finckenstein said the Charter compels Ottawa's spies to play by the rules even when they travel abroad.
"One must weigh CSIS's legitimate intelligence gathering in the name of fighting al-Qaeda," he concedes in his ruling.
But even so, "the danger to the public interest caused by CSIS/DFAIT agents not being able to access the Plaintiff is outweighed by the possible conviction of the Plaintiff in the U.S. on the basis of evidence obtained in violation of the Charter."
Judge Von Finckenstein says there is "no evidence" that Mr. Khadr has ever been advised of his rights.
He adds that it is "questionable" whether the young man has any more information to provide, given that he has spent three years at Guantanamo.
And his recent complaints of abuse and humiliation by American soldiers indicate he "is in poor mental and physical shape," the judge found.
Mr. Khadr has not accused Canadian officials of mistreating him and Ottawa has described its officials visits as humanitarian. Judge von Finckenstein disagreed strongly.
"They were not welfare visits or covert consular visits but were purely information-gathering visits with a focus on intelligence/law enforcement."
The case is just one of several extraordinary legal battles involving the fundamentalist Khadr family.
Their public pronouncements against the United States and assertion of their rights as Canadian citizens have rendered them unsympathetic to many.
Hundreds of "enemy combatants" remain jailed in Guantanamo as U.S. courts wrestle with the legality of the prison experiment, but "this is the first judgment I know of where America is found not to be complying with the rule of law," Mr. Edney said.
Several Ottawa agencies said the ruling was too fresh to comment on yesterday.
But "Canada remains a target of al-Qaeda and CSIS has a duty to fully investigate the threat from this group," Barb Campion, a spokeswoman for the spy agengy, said in an e-mail to The Globe and Mail.
She added that "the Khadr family has made no secret of its affiliation to al-Qaeda or its loyalty to Osama bin Laden.
The service's interviews of Mr. Khadr were done with the intent of furthering its investigation of Sunni Islamic extremism."
She said that the agency's interviews were shared with U.S. authorities, but not with an eye to bringing any proceedings against Mr. Khadr.
Still, Judge von Finckenstein was clearly worried about that prospect, as there is speculation that the teenager could possibly be executed for his activities in Afghanistan.
"Given the gravity of the allegations against him, any U.S. prosecution may entail irreparable harm," he said.