Can Omar Khadr Apply for Habeas Corpus?

My colleague Stéphane Beaulac raises a question that has not (it seems) had any consideration: can Omar Khadr, now back in Canada, apply for habeas corpus? Khadr can apply for a conditional release next year, but perhaps he will not have to wait that long.

Khadr can almost certainly apply for the Great Writ. The leading Supreme Court of Canada case is May v. Ferndale Institution, 2005 SCC 82.

Writing for a unanimous Court on the point, LeBel and Fish JJ. held that "provincial superior courts should decline habeas corpus jurisdiction only where (1) a statute such as the Criminal Code, R.S.C. 1985, c. C-46, confers jurisdiction on a court of appeal to correct the errors of a lower court and release the applicant if need be or (2) the legislator has put in place complete, comprehensive and expert procedure for review of an administrative decision" (at para. 50).

Khadr was returned to Canada this weekend under the International Transfer of Offenders Act, S.C. 2004, c. 21. It does not seem that there is any review procedure contemplated by the Act: the Minister takes a discretionary decision, relying on a variety of factors, to transfer the prisoner to Canada.

Khadr could, then, seek habeas in a provincial court. He could also seek judicial review of the Minister's decision in Federal Court, but the consequence of a successful judicial review might leave him in legal limbo, for without more, it would merely hold the transfer invalid, not the sentence he is serving.

Were Khadr to make a habeas application, section 13 of the Act would present a difficulty. It provides that "the enforcement of a Canadian offender's sentence is to be continued in accordance with the laws of Canada as if the offender had been convicted and their sentence imposed by a court in Canada" (my emphasis).

This seems to create an irrebuttable presumption that Khadr is now lawfully detained. And, of course, Khadr pleaded guilty to the offence with which he was charged.

All may not be lost, however. If a court can be convinced that there is still a "continuing breach" of Khadr's Charter rights, in that his decision to plead guilty was taken in the absence of appropriate safeguards, it might also be possible to convince it that the appropriate remedy would be to interpret section 13 narrowly, as not applying in a situation where (say) an egregious breach of the Charter and international law has occurred.

On the one hand, the Supreme Court's judgment in Khadr (No. 2), 2010 SCC 3 is hedged with many qualifications, however, so Khadr's legal team would have an uphill struggle in any habeas application. On the other hand, we are now in the realm of domestic legislation and executive action, not the prerogative over foreign affairs, so the Canadian courts might have more elbow room (although there would doubtless be international implications if repatriated prisoners were thought likely to be released by Canadian courts on foot of habeas applications).

Any habeas application would undoubtedly be messy, because it would require a Canadian court to shine a light on the procedures employed by America's military commissions.

I am not an expert in this area, so I welcome any comments and suggestions. It will be interesting to see if there are developments between now and the time slated for Khadr's conditional release. Stéphane will be discussing this on Radio Canada later today. I'll post up the link when I have it.

UPDATE:  The interview with Stéphane is available here.