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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