TORONTO - New court documents show the Canadian government is defending itself against allegations it is deliberately dragging its feet in allowing Omar Khadr to return from Guantanamo Bay by arguing much of the delay is the fault of the Americans.
In an affidavit filed in response to a Federal Court application by Khadr's lawyers, a senior public safety official cites two main reasons for the lack of a decision to an application for Khadr to serve out his sentence in Canada — something he was eligible to do starting last October.
The first reason cited was a delay in Washington's approval of the transfer — granted only this past spring.
The second reason was Public Safety Minister Vic Toews's request for sealed videos of mental assessments of the inmate done for military prosecutors — apparently only discovered in February through media reports.
Khadr pleaded guilty to five crimes, including murder, in violation of the rules of war before a widely discredited military commission in October 2010. He applied to transfer to Canada in April of last year.
In an affidavit by Mary Campbell, the Correctional Service of Canada finished processing the application in October 2011 — around the time Khadr was eligible to return under terms of his widely reported plea deal.
The file was immediately forwarded to Public Safety Canada, which in turn sent it to Toews for a decision, according to the document obtained by The Canadian Press.
However, Toews refused to accept the file, according to Campbell, the ministry's director general of the corrections and criminal justice directorate.
"The minister does not, as a practice, consider applications from offenders in the U.S. unless the U.S. has first approved the application," Campbell said in her affidavit dated Wednesday.
"The minister did not receive the file at that time."
John Norris, one of Khadr's Canadian lawyers, said Toews's refusal to handle the file before receiving formal U.S. approval made no sense given that Washington had agreed to the transfer at Khadr's trial in October 2010.
"How good an explanation is that in a case where the Americans had committed in a plea deal to approval?" Norris said in an interview Thursday.
"Clearly, it's the minister's office that is mishandling the file."
Toews rejected the accusation and suggested Khadr's lawyers bear some responsibility for the delay.
"I thought the (video) tapes were a crucial aspect of the determination as to Mr. Khadr's return to Canada. I have not seen those tapes yet. They were provided to my office, I believe, Sept. 5," Toews said in Winnipeg.
"I'd be surprised that the lawyer doesn't know better than to suggest that there's been any dragging of the feet, given the fact that he hasn't provided me with any of that information, knowing that that information existed.
"I didn't know about it until the media reported it."
The U.S. indicated its approval of Khadr's transfer in April and provided the actual hard-copy package in May, Campbell said.
The entire file — without the psychiatric evaluations of Khadr, who turns 26 next week — was given to Toews on May 23, the documents show.
According to Campbell, Canada began to correspond with the U.S. in March about the sealed videotapes of the assessments done by psychiatrist Dr. Michael Welner and military psychologist Maj. Allan Hopewell — after learning about their existence through media reports a month earlier.
Welner, who condemned Khadr as an unrepentant and dangerous extremist, starred as the prosecution's main witness at the 2010 military commission trial. Hopewell's view was decidedly less negative. He called the Toronto-born Khadr manipulative, but mentally stable and someone who sees himself as a Canadian.
Because the tapes had been sealed, it would require a joint defence-prosecution request to the head of the military commissions and a security clearance to have them released to the Canadian government. It took until Sept. 5 for the tapes to reach the ministry and another two days to land on Toews's desk, Campbell said.
Norris called the situation surrounding the tapes "extraordinary."
"They don't say anything about why it took so long for them to find the stuff," he said.
Normally, it takes just under 15 months for the government to decide on a prisoner's transfer — suggesting Toews should at the very least have made a decision two months ago.
In their Federal Court application filed in July, Khadr's Canadian lawyers call the delay "unreasonable" and "an abuse of process."
Khadr was 15 when he was captured — badly wounded and almost blind — in the rubble of a bombed out compound in Afghanistan in July 2002. He was transferred to Guantanamo Bay a few months later and has been held there since.
On Wednesday, Prime Minister Stephen Harper, who has denounced Khadr as a convicted criminal, and Toews denied a news report that Canada had approved the transfer but was delaying the announcement.
"I anticipate making a decision in the near future, but I certainly have not arrived at any conclusion at this point," Toews said.
— With files from Steve Lambert in Winnipeg