Rights abuses by U.S. grounds for denying extradition, court rules

A Toronto judge was justified in freeing an alleged Al Qaeda collaborator given the gravity of human rights abuses committed by the United States in connection with his capture in Pakistan, the Ontario Court of Appeal has ruled.

Judges are not expected to remain passive when countries such as the U.S. violate the rights of alleged terrorists, the court said Friday.

Its 3-0 ruling upholds a decision last August by Justice Christopher Speyer of Ontario’s Superior Court of Justice to stay extradition proceedings involving Abdullah Khadr, 30, who is wanted in Boston on charges of procuring munitions for use by Al Qaeda against U.S. and coalition forces in Afghanistan.

The Toronto man is the older brother of Guantanamo detainee Omar Khadr and son of Ahmed Khadr, who was suspected of having close ties with Osama bin Laden and killed in a shootout with Pakistan’s security forces on the Afghanistan border in 2003.

“We must adhere to our democratic and legal values, even if that adherence serves in the short term to benefit those who oppose and seek to destroy those values,” said Justice Robert Sharpe, writing on behalf of Justices John Laskin and Eleanore Cronk.

“For if we do not, in the longer term, the enemies of democracy and the rule of law will have succeeded,” he said. “They will have demonstrated that our faith in our legal order is unable to withstand their threats.”

The U.S. paid Pakistan’s intelligence agency, the Directorate for Inter-Services Intelligence (ISI) $500,000 to abduct Khadr, a Canadian citizen, in Islamabad on Oct. 15, 2004.

He was denied access to courts and consular officials, beaten until he cooperated with the ISI and detained at a secret location for 14 months.

U.S. authorities discouraged a request from a Canadian Security Intelligence Service officer in Pakistan that Khadr be granted access to the Canadian consulate.

U.S. officials wanted Pakistan to allow for his rendition to the U.S., but it refused to do so without Canada’s consent, which was denied.

Khadr was flown to Toronto on Dec. 2, 2005 and charges were filed in Boston 12 days later.

In its ruling Friday, the court said Speyer’s decision to pull the plug on the American extradition request was a viable way of protecting the integrity of the justice system and distancing Canada’s courts from how U.S. and Pakistani officials behaved.

Sending Khadr to Boston would amount to sanctioning human rights abuses, the court said.

“No doubt some will say that those who seek to destroy the rule of law should not be allowed its benefits,” said Sharpe. “I do not share that view.”

There is simply no basis for the federal government’s argument that an alleged terrorist will remain at large as a result of Speyer’s decision to halt the extradition, Sharpe added, because Canada’s justice minister can prosecute Khadr here for terrorism offences.

While the federal government argued Speyer had no right to pass judgment on the legality of Khadr’s treatment in Pakistan, the court suggested that was beyond debate.

“It surely can come as no surprise that in a country like Pakistan with a constitution guaranteeing fundamental rights and freedoms, it is illegal to accept a bounty or bribe from a foreign government to abduct a foreign national from the street, to beat that individual until he agrees to cooperate, to deny him consular access, to hold him in a secret detention centre for eight months while his utility as an intelligence source is exhausted, and then to continue to hold him in secret detention for six more months at the request of a foreign power.”

The federal justice department is considering whether to seek an appeal to the Supreme Court of Canada.