Canada appeals decision staying extradition of Khadr to Supreme Court of Canada

By Christine Duhaime | July 30th, 2011

The Canadian government has applied for leave to appeal a decision staying the extradition of Abdullah Khadr to the Supreme Court of Canada. In May of this year,  the Ontario Court of Appeal upheld a lower court decision staying Khadr’s extradition.

The Canadian government is arguing that it’s ability to comply with international obligations could be compromised if the decision staying Khadr’s extradition is allowed to stand. In the past, Canada has been criticized for failures to comply with counter terrorist financing and anti-money laundering international standards. Through membership in the FATF, Canada agreed to comply with the FATF standards which require, among other things, that Canada:

  1. Not provide a safe haven for persons charged with terrorist financing or terrorist acts;
  2. Give the U.S. (among other countries), the greatest possible measure of assistance in U.S. proceedings relating to terrorist financing and terrorist acts; and
  3. Facilitate the extradition of persons charged with terrorist financing or terrorism.

In 2005, Khadr was arrested in Toronto while the U.S. sought his extradition on charges that, while in Afghanistan, he supplied firearms, ammunition and components for landmines to al-Qaeda, a listed terrorist organization in Canada.

The Ontario lower court granted the stay of extradition almost a year ago. It held that although the United States had established a prima facie case for extradition, the mistreatment of Khadr while incarcerated in Pakistan warranted a stay of proceedings.

Under the Extradition Act, a hearing is held to determine whether a person can be extradited. At the hearing, the judge must be satisfied that there is sufficient evidence to establish a prima facie case that an extraditable crime has been committed.

The U.S. case against Khadr relied on statements he made to the Pakistan police and the FBI while incarcerated in Pakistan, and similar statements Khadr made to the FBI and RCMP when he was in Canada. Khadr alleged that statements he made in Pakistan were the result of torture. He admitted that the statements he made while in Canada to the FBI and RCMP were made of his own volition.

The lower court held that the statements made to the RCMP were sufficient to establish that Khadr conspired to:

  1. Traffic in weapons;
  2. Make property available knowing that it would be used or would benefit a terrorist group; and
  3. Knowingly participated in or contributed to the activities of a terrorist group to enhance their ability to carry out terrorist activities.

However, the court rationalized that although the case for extradition was established in law, a stay of extradition was appropriate to deter future abuses by the U.S. and to disassociate the court from the conduct of the U.S.

The decision effectively holds that the statements Khadr to the RCMP in Canada cannot overcome the circumstances under which the earlier statements were obtained. Under the common law, subsequent statements by a suspect can be tainted by earlier statements obtained in a manner that breaches the Charter of Rights and Freedoms if the breach and the statements are part of the same transaction or course of conduct, and the connection between them is not remote or tenuous.

In the Khadr case, there are two relevant groups of statements – statements obtained while Khadr was in Pakistan by Pakistan and U.S. authorities that Khadr said were given under duress; and statements independently obtained while Khadr was in Canada by Canadian authorities that Khadr said were not given under duress and where there was no Charter breach. There are also statements made in Canada to U.S. authorities. According to an Affidavit filed by the U.S., Khadr was mirandized in advance of each statement to U.S. authorities.

The decision at the Ontario Court of Appeal is interesting because it holds that law enforcement interviews of the same person by agencies in different countries over the same subject matter can be one transaction, and the statements made by that person are tainted if the first set of statements made in country #1 were made in violation of  the person’s Charter rights, even if the second set of statements by the person in country #2 were made in circumstances where the person’s rights were protected.

Abdullah Khadr is the brother of Omar Khadr, who pleaded guilty to terrorism charges in the United States. The Ontario Court earlier noted the fact that Abdullah Khadr “expressed admiration for the members of al-Qaeda who carried out the unspeakable 9/11 attacks in the United States.”

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