Canada's top court will wait until a later date to rule on the Omar Khadr case. It reserved judgment on the former child soldier's case after hearing arguments Wednesday from his lawyers and the federal government.
Justice Department lawyers went before the court, arguing for a reversal of a lower court decision that would see Ottawa forced to disclose confidential documents relating to Khadr's case.
Khadr, the Toronto-born son of an alleged al Qaeda financier, was captured by U.S. soldiers in July 2002 following a firefight in Afghanistan.
Khadr, then 15, was eventually transferred to Guantanamo Bay, Cuba, following allegations he threw a grenade during the firefight, killing a U.S. soldier.
Khadr's lawyers want the government to release classified documents obtained by Canadian officials who interrogated Khadr at Guantanamo after his arrival.
The Federal Court of Appeal agreed with Khadr's lawyers last year, ordering the government to release thousands of pages of files.
But the Crown appealed the decision, bringing the issue before the SCC.
Lawyers for the federal government told the SCC Wednesday that Khadr's team is on a fishing expedition that could compromise sensitive information.
Sameer Zuberi, a spokesperson for the Canadian Council on American-Islamic Relations, told CTV Newsnet late Wednesday afternoon that Ottawa has made a similar argument in past cases, most notably in the Maher Arar inquiry.
Arar was the Canadian citizen who the U.S. sent to Syria after a 2002 stopover in New York. The RCMP wrongly suggested Arar had terrorist links, and the Syrians tortured the Canadian for 10 months.
Zuberi said parts of the Arar inquiry report were "redacted, they were not released to the public, (but) later on they were. Those released sections -- it was shown that the only reason why they were not released was because they were an embarrassment to the government and to intelligence agencies. So, the question is: is this what is happening again?"
SCOC arguments
Despite Ottawa's security claims regarding the documents, SCC judges challenged Justice Department lawyer Robert Frater, asking him to reveal which authorities in the U.S. received the confidential information.
Frater was also challenged to say if Canadian authorities issued any stipulation or restrictions on how the U.S. could use the information, reports The Globe and Mail.
"Obviously it was shared for a purpose," Justice Ian Binnie said. "You are the one who knew how it was shared and whether there were restrictions."
Binnie said Frater could not expect Khadr's lawyers to figure out how central the information was to the U.S. decision to lay murder charges against Khadr if they are unaware of how Canada supplied the information, reports The Globe.
Frater argued that Khadr's lawyers should seek disclosure through the U.S. courts as Canada is not the investigator or the prosecutor in the case.
"If we take a look at the questions the Supreme Court judges were asking to the federal lawyers, it seems that it may be possible that they will say: 'hand over the information to Omar Khadr's defence council,'" said Zuberi.
Khadr's rights
Earlier Wednesday, defence lawyer Dennis Edney told CTV's Canada AM that the information Canadian officials obtained is now being used against Khadr in Guantanamo.
"They violated so many of his rights and in the course of doing that they interrogated him off and on for days and then they provided that evidence and information to the Americans," he said.
Edney said 99 per cent of the documents his team has received from the Canadian government have been blacked out.
"We say he's entitled to that information because he needs to have a fair trial," he said. "The process is already tainted enough over there and he's entitled, as a Canadian citizen, to that disclosure."
Khadr's American lawyer, Lieutenant-Commander William Kuebler, told CTV's Canada AM on Wednesday that the documents will be especially important if his client faces a trial at Guantanamo Bay.
"We think those are very important for purposes of his defence... because what those documents may show is what exactly the U.S. government knew in reality about the facts relating to Omar's capture when he was first taken into custody," said Kuebler.
"More importantly for Canada, what those documents may show is whether the Canadian government was sold privately the same myth -- the same bill of goods -- that the U.S. government sold publicly about the facts surrounding Omar's capture in Afghanistan."
Meanwhile, Khadr's Canadian lawyers also want the hearing to highlight the way their client's case has been handled overall. They claim his treatment does not meet international standards of fairness.
"We're saying that you're not a second-class citizen when you step across the border or any border outside the geographical boundaries of Canada," said Edney.
With files from The Canadian Press
