They are the two Toronto-based criminal defence lawyers representing the only Canadian still imprisoned in Guantanamo Bay, Cuba. Their client, Omar Khadr, is stuck in a holding pattern as he waits for Public Safety Minister Vic Toews to decide on his return to Canada to complete the remainder of his eight-year prison sentence.
With Toews taking his time and public opinion divided over whether Khadr should return to Canada or remain in Guantanamo Bay, lawyers John Norris and Brydie Bethell are putting political and legal pressure on the government to make a decision.
The connection with Afghanistan and the alleged link to Al Qaeda are factors Norris believes the government is using “to justify the hard line that it is taking without looking at all of the circumstances of the case.”
He notes that practically every international body has condemned Canada’s stance in this matter.
“There’s probably no other case going on in Canada today that involves the kinds of issues that [this case] does,” says Bethell.
“In my view, Omar is a Canadian citizen who has been abused at every turn and the Canadian government has failed him so incredibly.”
She adds: “I’ve always believed we’re the good guys in Canada and I have been profoundly disappointed in the treatment of our own citizen in this case.”
While Norris and Bethell have only acted as Khadr’s Canadian counsel this past year, their involvement in the case goes back to 2008 when Khadr began legal proceedings in Canada. Norris and Bethell were acting for interveners in matters before the Supreme Court of Canada in 2008 and 2010.
Norris was called to the bar of Ontario in 1993 and practised criminal law with Clayton Ruby and Marlys Edwardh.
Bethell articled at WeirFoulds LLP and was called to the bar in 2005. She then practised at Paliare Roland Rosenberg Rothstein LLP before moving into criminal law.
Norris met Bethell at a meeting organized by Human Rights Watch. Their first experience working together was on Khadr’s case when the Criminal Lawyers’ Association asked Norris to intervene on its behalf at the Supreme Court. Norris asked Bethell to help with the case and they’ve been working together ever since.
In 2008, Norris and Bethell began practising at Simcoe Chambers with a focus on criminal defence and international law. Their practice includes extraditions, treaty transfers, and immigration law in the national security context.
Throughout the years, they’ve been committed to supporting Khadr’s return to Canada. Norris says it was clear to him from working on behalf of the interveners before the Supreme Court just how deep the issues were in Khadr’s case.
He notes Khadr’s case was unique and says the injustices done to him cry out for someone to make every effort on his behalf. He adds that when the opportunity to assist Khadr presented itself on a case that’s not only of great importance but that also fit in with his vision of what he wanted to be as a lawyer, he jumped at the chance to represent him.
Khadr was born in Scarborough and will be turning 26 in September. U.S. soldiers took him prisoner in Afghanistan on July 27, 2002, when he was 15 years old. Authorities alleged he threw a grenade during a firefight that killed an American soldier and that he conspired with Al-Qaida members to commit acts of terrorism against U.S. and coalition forces.
A few months later, Khadr moved to adult detention facilities at Guantanamo Bay.
In February and September 2003, agents from the Canadian Security Intelligence Service and the foreign intelligence division of the Department of Foreign Affairs and International Trade interviewed Khadr and then shared the product of their interviews with U.S. authorities.
A Foreign Affairs representative interviewed Khadr again in March 2004 despite knowing U.S. authorities were subjecting him to a sleep deprivation technique known as the “frequent flyer program” in an effort to make him less resistant to interrogation. The Federal Court issued an interim injunction in 2005 to prevent CSIS and Foreign Affairs from interviewing Khadr further.
In November 2005, authorities charged Khadr with war crimes.
“One of the very troubling aspects of the Guantanamo process is that it did not provide for a separate judicial process for youth,” says Norris.
“It’s a value that’s fundamental to the Canadian judicial process and to other judicial processes that we respect that youth ought to be treated differently and that was absent entirely from the Guantanamo process.” He adds that his understanding is that the international war crimes tribunals won’t prosecute youths.
In 2008, the Supreme Court ordered the disclosure of the CSIS and Foreign Affairs interview transcripts to Khadr. The court noted that the Charter of Rights and Freedoms applied to the Canadian officials’ actions.
On July 10, 2008, during a media interview, Prime Minister Stephen Harper announced his decision not to request Khadr’s repatriation. Consequently, Khadr applied for judicial review of the decision. He claimed an infringement of his s. 7 Charter rights.
While the Supreme Court found a violation of Khadr’s s. 7 rights, the court didn’t order the government to request his return to Canada.
Rather, the court found an infringement of Khadr’s Charter rights and left it up to the government to decide how best to respond.
In October 2010, Khadr entered into a plea agreement in relation to the U.S. charges. Under the agreement, he was to serve eight more years with the first year to take place in Guantanamo Bay and the remainder of the sentence in Canada.
The Canadian and U.S. governments also exchanged diplomatic notes stating both countries’ support for Khadr’s transfer to Canada to serve the remainder of his sentence.
Khadr made a formal written application requesting a transfer to Canada in the spring of 2011.
In August 2011, Khadr retained Norris and Bethell to act as his counsel. Their work initially focused on getting the United States to approve Khadr’s transfer to Canada, particularly once he had completed serving his first year in U.S. custody.
On April 18, 2012, the U.S. government confirmed its approval of Khadr’s transfer to Canada. Since then, Khadr has been waiting for the Canadian government to issue its approval. Norris notes the transfer application has been sitting on Toews’ desk since March 2011.
“The reality is that [the Canadian government has] known what’s been happening to Omar for years,” says Bethell.
“They exchanged diplomatic notes in 2010. Diplomatic notes are obviously not taken lightly and for the government to suggest this is the first time they’re looking into this and reviewing the case is truly hard to believe.”
On July 13, 2012, Khadr brought a judicial review application to compel Toews to make a decision. The issue on the application is whether there has been unreasonable delay on Toews’ part in coming to his decision.
Norris notes that delay in treaty transfer matters often occurs and isn’t unique to Khadr’s case.
“This government has been quite hostile towards any sort of treaty transfer for pretty much any type of Canadian offender for reasons that really escape us,” he says.
“There are sound public policy reasons for having treaties with countries and for having a process for bringing Canadians back to Canada to complete their sentences here. When somebody is a Canadian citizen, they have the right to return to Canada absolutely once they are released from foreign custody and one would think that the government would see that it’s in everyone’s interest to promote the speedy reintegration of individuals into Canadian society.”
He notes that other circumstances, such as the conditions of detention in foreign countries, make the return to Canada even more pressing.
At this point, Toews has requested access to two psychological assessments and videos of Khadr before his military commission trial in October 2010. Khadr’s defence team has agreed to release the materials and the military commission has signed off as well.
Norris is hopeful Khadr’s judicial review application will come before the court this fall.
Norris and Bethell keep busy not only with Khadr’s case but also several other international criminal law matters, including extradition cases. This past June, Norris and Bethell were before the Supreme Court of Canada in Suresh Sriskandarajah v. United States of America.
The court heard that case with two other appeals that challenged the constitutionality of terrorism provisions in the Criminal Code. In Sriskandarajah’s matter, the United States sought his extradition over allegations he assisted the Liberation Tigers of Tamil Eelam for the purpose of enhancing its ability to engage in terrorism. The court’s decision is currently under reserve.
While Norris and Bethell are sole practitioners, they’ve almost full integrated their practices and they plan to form a partnership next year.