JURIST Guest Columnist Kent Roach of the University of Toronto Faculty of Law says that the Supreme Court of Canada’s recent refusal to review a lower court’s stay of extradition proceedings represents an important victory for the rule of law as well as straining US-Canada relations…

According to the Canadian courts, what happens in Pakistan does not stay in Pakistan. The Supreme Court of Canada recently refused to review a permanent stay of extradition proceedings against Abdullah Khadr. Lower courts had previously ruled that “gross misconduct” by the US in arranging and prolonging Khadr’s detention in Pakistan justified the extraordinary remedy of a stay of proceedings. The Supreme Court’s refusal to consider this case means that Khadr will not be extradited to the US, where he has been indicted on charges of material support of terrorism for allegedly supplying arms and explosives to be used against US forces in Afghanistan. It is possible, but not probable, that Canadian authorities will prosecute Khadr, who was released in August 2010 after four-and-a-half years of pre-extradition custody and has still not been charged in Canada.

Abdullah Khadr is part of Canada’s infamous Khadr family, self-professed supporters of al Qaeda. His father was a close associate of Osama Bin Laden and one of his younger brothers, Omar Khadr, remains in Guantanamo where he pleaded guilty to various charges, including the murder of an American soldier. Abdullah Khadr was captured by the Inter-Services Intelligence Directorate in Pakistan in October 2004 after the US posted a $500,000 bounty for his capture. The fact that the US paid such a bounty was secret until it was revealed in a decision by a Canadian judge in related state secrets proceedings and only after a Canadian newspaper was initially enjoined from publishing the information. The judge stressed that while the US had not agreed to the release of information about the bounty, “[i]t is now more than three years since the information was received by Canadian officials, the general practice is in the public domain, no human source would appear to be at risk and the circumstances in Pakistan have changed since these events took place.”

Khadr was held for 14 months in a secret Pakistani detention center without access to counsel or courts. He was denied consular access to Canadian officials until January 2005. In August 2010, a Canadian extradition judge found that Khadr was denied access by Pakistan and the US acting “in concert” in an attempt to facilitate interrogation by US intelligence. Khadr alleged he was tortured in Pakistan, but the judge found that these allegations were not established because of inconsistencies in his story. He did, however, find that Khadr was physically abused by Pakistani officials, but not by the FBI.

In June 2005, the Pakistani authorities were prepared to release Khadr, concluding that they had gained all the intelligence from him that was possible. The judgment for Khadr’s extradition hearing states that, just before Khadr’s planned release, a Canadian Security Intelligence Service officer “received a phone call from his American intelligence counterpart telling him the US agency disagreed with and was concerned about plans to repatriate Khadr to Canada,” and that the “US believed Khadr still posed a threat and that releasing him at this point was not a wise course of action.”

In July 2005, FBI agents interviewed Khadr in Pakistan. Afterwards, the US apparently attempted, without success, to persuade Pakistani officials to allow Khadr to be rendered into their custody. In November 2005, “a senior United States official” asked Canada to consent to further delay in Khadr’s release so that the US officials “could ‘get their act together’ with respect to extradition plans.” The Canadian officials, perhaps mindful of the controversies caused by delays in Maher Arar’s return, refused and Khadr was released to Canadian consular officials and flown back to Canada by the end of the month.

The FBI maintained their interest in Khadr, sending the same two agents who had interviewed him in Pakistan to interview him in Toronto with representatives of the Royal Canadian Mounted Police (RCMP) present. The Canadian extradition judge excluded the results of the Toronto FBI interview because he found that they were derived from the interviews that the same FBI agents had conducted with Khadr in Pakistan. In those interviews, Khadr admitted to supplying al Qaeda with machine gun rounds, grenades, rockets and explosive material to be used against American and coalition forces.

The strong actions of the Canadian courts in staying the extradition request in the Abdullah Khadr case can be contrasted with the Supreme Court of Canada’s refusal to uphold an order that Canada be required to request Omar Khadr’s repatriation from Guantanamo because of concerns that such a remedy would interfere with Canada’s conduct of diplomacy with the US.

The Ontario Court of Appeal upheld the stay of the extradition proceedings in part by relying on British authority that had stayed proceedings in the case of irregular extradition, a result quite different than reached by the US Supreme Court in US v. Alvarez-Machain. The Ontario court held that the alternative of excluding the statements taken by the FBI in Pakistan and Toronto would fail to disassociate the court from the “‘gross misconduct’ that could not be remedied by anything short of a stay of proceedings.” In an unanimous and eloquent judgment by Justice Robert Sharpe, the Court of Appeal stressed that “the rule of law must prevail even in the face of the dreadful threat of terrorism” and even when it “serves in the short term to benefit those who oppose and seek to destroy” such values. In this respect, the judgment can be seen as part of Canadian repudiation of America’s irregular tactics in its war on terror.

There are, however, some troubling aspects in the case. The decision to stay extradition proceedings against Abdullah Khadr led to his release after four-and-a-half years of pre-extradition custody in Canada. Two judges had denied Khadr bail because of concerns that, given his and his family’s history, he might flee the jurisdiction and because of public statements made by Abdullah Khadr in February 2004 that indicated admiration for the 9/11 terrorists and dreams of becoming a martyr. In this sense, the case may again trigger concerns in the US that Canada may not take a tough enough approach to terrorist suspects.

The Ontario Court of Appeal dealt with some of these concerns in its judgment. It rejected the Canadian government’s “emotive argument that because of what the extradition judge did, an admitted terrorist collaborator is allowed to walk free” as “unfounded” because of the seriousness of the abuse, and also noted that Khadr could be prosecuted in Canada under the 2001 Anti-Terrorism Act for acts of terrorism that are committed outside of Canada. This is true, but no charges have been laid against Abdullah Khadr since his release and Canadian courts have already held that his statements in Pakistan are inadmissible because of his mistreatment there. Any Canadian prosecution would also be complicated by the reluctance of both Pakistani and American officials to release information.

It is likely that the Supreme Court’s decision not to review the stay in Abdullah Khadr’s case will place as much, if not more, strain on Canadian-American security relations — given the seriousness of the allegations against Khadr and the apparent reluctance of Canadian officials to prosecute him — than would have a request by Canada for Omar Khadr’s repatriation. Canadian courts were prepared to take a stronger remedial position in this case where Abdullah Khadr was within their jurisdiction than in the Omar Khadr case where he remained within American jurisdiction.

The Abdullah Khadr case demonstrates that extradition from Canada will not be dominated by concerns about comity towards states requesting extradition. It follows in the tradition of the Supreme Court’s 2001 decisions that Canada should not extradite without assurances that the death penalty will not be applied and that it not extradite in a case where an American prosecutor hinted that a fugitive might be raped in an American prison if he contested the extradition request.

The Abdullah Khadr case also has echoes of the Maher Arar affair given the apparent attempts by American officials to have Abdullah Khadr irregularly extradited. In this case, however, the American officials wanted Khadr sent to the US for trial and not to Syria for torture. Canadian officials did not, as in the Arar case, send mixed signals about whether they wanted their citizen back and insisted with success that Khadr be returned to Canada.

The Abdullah Khadr case is a reminder of how intelligence-only operations involving harsh interrogation and incommunicado detention can irreparably taint subsequent legal proceedings and how the victims of counter-terrorism abuses can use many different forums to vindicate their rights. What happened in Pakistan did not stay in Pakistan. Indeed, it prevented the criminal prosecution of Abdullah Khadr in the US and may also prevent his criminal prosecution in Canada.

Kent Roach is a Professor of Law and the Prichard-Wilson Chair in Law and Public Policy at the University of Toronto. He is a former clerk to Justice Bertha Wilson of the Supreme Court of Canada and has been editor-in-chief of the Criminal Law Quarterly since 1998. In 2002, he was elected a Fellow of the Royal Society of Canada. His latest book The 9/11 Effect: Comparative Counter-Terrorism was published by Cambridge University Press in September.

Suggested citation: Kent Roach, Abdullah Khadr and the Consequences of Detainee Abuse, JURIST – Forum, Nov. 22, 2011, http://jurist.org/forum/2011/11/kent-roach-khadr-extradition.php.