EDMONTON, Alberta – The Canadian government was seeking an emergency stay of a judge's decision to give a former Guantanamo Bay inmate bail while he appeals his conviction for war crimes in the United States.
The request comes in material filed late Monday as part of Ottawa's 11th-hour attempt to block Omar Khadr's release from prison — which could come as early as Tuesday evening. The government said that granting bail to Khadr would threaten the entire system of international prisoner transfers.
"A lack of clarity in the international transfer process may jeopardize the system as a whole," the government stated in documents obtained by The Canadian Press.
"(Khadr's) release unsettles the foundation of this system by introducing uncertainty and a lack of control over the manner in which Canadian offenders' sentences are enforced."
Despite having presented no such evidence at his bail hearing, the government now argues that allowing Khadr out — given his long incarceration — presents a risk that is contrary to the public interest.
"Springing (him) into the community rather than allowing him to continue his planned reintegration poses an undue risk," the government stated
It does not elaborate on the nature of the risk but notes he has applied for parole in June.
In response, Khadr's lawyers said the government's case for a stay was weak.
For one thing, they said, the government acknowledges Khadr's case is unique and will have little or no effect on other prison transfers.
"The onus is on the (Crown) to establish that irreparable harm will actually occur if a stay is not granted," they stated in their reply brief.
"Reliance upon harm that is speculative or merely 'likely' is insufficient," it said.
On Monday, the government also filed its formal notice of appeal of the April 24 decision by Justice June Ross of the Alberta Court of Queen's Bench granting Khadr bail. It wants the stay pending disposition of the case.
The last-ditch stay application, slated to be heard by a single Court of Appeal justice on Tuesday morning, says the government "will suffer irreparable harm" if the Toronto-born Khadr, now 28, is released.
In a statement, a Khadr support group denounced the government's "unrelenting vilification" of the prisoner and its "knee-jerk" appeal of every court decision favourable to him.
"The rights, freedom and liberties of all Canadians are diminished by the actions of this government," Free Omar Khadr Now said.
Ottawa maintains that Ross had no jurisdiction to hear Khadr's bail application under the provisions of the International Transfer of Offenders Act — the treaty that saw him returned to Canada from Guantanamo Bay in September 2012 to serve out his eight-year sentence for five war crimes.
Allowing him out — an unprecedented situation — could jeopardize the repatriation of other Canadian prisoners and damage Canada's relations with the U.S., the government said.
But the U.S. State Department said in a statement to CBC Monday that releasing Khadr on bail would not strain Canada-U.S. relations.
Ross gave "short shrift" to Canada's "real and consequential" international obligations and she was wrong to find that the right to seek bail pending appeal is a constitutionally guaranteed "principle of fundamental justice," the government argued.
Toronto-born Khadr spent a decade in the U.S. prison for terrorism suspects at Guantanamo Bay, Cuba. But since 2012 he's been held in a Canadian prison in the western province of Alberta, serving out an eight-year sentence handed down by a U.S. military commission in 2010. He was convicted of five war-crimes, including throwing a grenade when he was 15 years old that killed a U.S. Army sergeant in Afghanistan during a 2002 firefight.
Khadr, now 28, agreed to a plea deal in 2010, but has since said he only pleaded guilty to get out of Guantanamo and be sent back to Canada.
Defense attorneys have said Khadr was pushed into war by his father, Ahmed Said Khadr, an alleged al-Qaida financier whose family stayed with Osama bin Laden briefly when Omar Khadr was a boy. The Egyptian-born father was killed in 2003 in a Pakistani military operation.
Harper's Conservative government has long refused to help Omar Khadr, who was once the youngest detainee at Guantanamo, reflecting ambivalence in Canada over the Khadr family.