Lawyers of Omar Khadr will be in the Supreme Court of Canada Wednesday morning trying to get access to confidential federal government documents they claim are vital to his defence — including transcripts of interrogations by Canadian officials.
His lawyers will ask the top court to order Ottawa to hand over uncensored transcripts and videotapes of the interrogations of Khadr in 2003 at Guantanamo Bay, Cuba. The court case stems from an appeal of an earlier federal court decision that ordered the Canadian government to release documents to Khadr's lawyers for use in his defence.
"This is information that Canada provided to the Americans which led to the possible and potential charges against Omar Khadr in Guantanamo Bay," Dennis Edney, a lawyer for Khadr, told CBC News. "And if this were in Canada, that very information would be required to be provided to an accused so he can get a fair trial."
His lawyers say he's entitled to the material because Canadian officials infringed the Charter of Rights when they interviewed him at Guantanamo Bay. They also hope the transcripts will provide evidence that Ottawa knew a Canadian citizen was being tortured and did nothing about it.
"We're saying that Canada has an obligation to provide those documents, and that obligation arises because it went to Guantanamo Bay when it was well known that this is a place beyond the rule of law. It took advantage of Omar Khadr," Edney said.
"We're saying that when you're a citizen abroad, you're not a second-class citizen."
Edney said that normally courts defer to laws of foreign countries, in this case the U.S. But Edney said they will argue there should be an exemption in Khadr's case. He said that allowing Canadian agents to go to Guantanamo Bay was a violation of domestic law, international law and human rights law.
Khadr, who is awaiting trial on murder and war crimes charges, was captured in Afghanistan in 2002 when he was 15 and has since been held at the U.S. military base.
In an affidavit filed with a U.S. military court, Khadr alleges U.S. military interrogators in Afghanistan threatened him with rape and treated him harshly, forcing him to make false and self-incriminating statements.
Canadians refused to help, Khadr says
He also claims that Canadian diplomats and intelligence officers who later questioned him at Guantanamo refused to help him.
Instead, he says in the affidavit, they questioned him about his father, Ahmed Said Khadr, who's been accused of being a founding member and financier of al-Qaeda.
Khadr says he was also interrogated about Maher Arar, the Canadian who was deported to a Syrian prison over alleged links to al-Qaeda. An inquiry later cleared Arar of any links to terrorist organizations. Khadr says he was also shown photographs of about 20 people and asked to identify them.
He says he ripped off his shirt and showed the Canadians his injuries. He also says he told them he had lied to his American interrogators and told them whatever they wanted to hear because he was scared and he wanted them to stop torturing him.
Khadr says they accused him of lying, and passed information from their interviews to U.S. officials.
Khadr's lawyers also want to use the hearing to argue the Americans are breaking international law by detaining him and planning to try him before a special military tribunal that doesn't measure up to accepted legal standards.
But the federal government says Khadr's demand for documents is a fishing expedition that could compromise sensitive intelligence information. Government lawyers also argue that a Canadian court is no place to pass judgment on U.S. detention and trial practices.
