TORONTO - Calls for Omar Khadr's repatriation may well be answered in the new year as the incoming U.S. president moves to shutter Guantanamo Bay and pressures Prime Minister Stephen Harper to bring the Canadian citizen home, experts say.
"I am absolutely convinced that Khadr is coming home," said Michael Byers, professor of international law at the University of British Columbia.
"Not because Stephen Harper wants him to come home but because of the pressure from the Obama administration for Canada to provide this small degree of assistance with respect to their closing down of Guantanamo Bay."
What seems most certain is that the isolated prison that has been home to Khadr for more than six years will close sometime in 2009.
U.S. president-elect Obama Barack has pledged to do so in an effort to erase a blight on his country's legal and moral stature by putting an end to the widely denounced system of military justice.
Whether that happens before Khadr, now 22, faces a war-crimes trial for allegedly killing an American special forces soldier in Afghanistan when he was 15 years old remains anyone's guess.
If Obama does move quickly, the question becomes whether Khadr would face trial in a U.S. court or whether Harper would call on the Americans to repatriate the youngest and only western citizen still held at the infamous prison.
To date, Harper has flatly refused to get involved in the case, arguing the American legal process has to play itself out. The three opposition parties, who have threatened to topple the Harper government, agree Khadr should be repatriated.
Obama, who has spoken strongly in favour of human rights, has realized it was "failed experiment in justice" and has no desire to use Khadr to make some kind of point, said Audrey Macklin, professor of law at the University of Toronto.
As a result, the new president, who takes office just six days before Khadr is scheduled to stand trial, will likely be calling on Harper to take Khadr.
"If the United States asks Harper to consider repatriating Khadr, then Harper will do so," Macklin said.
Canadian public opinion has been deeply split, though any backlash over the repatriation of Khadr, whose family members were once close associates of terrorist leader Osama bin Laden, would likely depend on what happens after his return.
Jeff Walker, a senior vice-president of Harris-Decima research company in Ottawa, said many Canadians view repatriation as giving Khadr a "get out of jail free card."
Documents that emerged over the past year revealed Khadr's American captors abused him physically and mentally.
Among other things, they threatened him with rape, kept him in isolation and in stress positions, and deprived him of sleep.
In July, video ordered released by Federal Court showed Khadr under interrogation by a Canadian intelligence agent. At one point, left alone in his cell, Khadr repeatedly sobs: "Oh mother. Oh mother."
The video, seen around the globe, showed how "emotionally vulnerable" and "non-threatening" the young Khadr was and contributed to a more sympathetic about his plight, Byers said.
Polling suggests otherwise.
Mario Canseco, a vice-president with Angus Reid Strategies in Vancouver, said the video had little effect on Canadian public opinion, likely because of his family's history as al-Qaida sympathizers.
"The video as a whole didn't move the needle," Canseco said.
"What did move the needle was the fact that, with Obama winning in the States, things might change, particularly if Guantanamo is shut down.
"When we asked that specific question, people tend to be more inclined to allowing Khadr to be tried in Canada then to be sent to a federal court in the United States."
Obama has also mused about creating a special "terrorist court" to deal with the detainees, though details are unclear.
Lt.-Cmdr. Bill Kuebler, a Pentagon lawyer who has fought tirelessly in both the legal and public-opinion arenas on Khadr's behalf, said Khadr needs to be put on the path to rehabilitation and integration as a child soldier.
"Step 1 is stopping this process; Step 2 is figuring out what to do with Omar and the other detainees. There is no one-size-fits-all solution," Kuebler said.
The U.S. government will have to look at the evidence and decide on whether it still wants to prosecute him, but any unbiased prosecutor would have to conclude there really isn't a murder case against Khadr, he said.
"That means not a prolonged process in the United States but getting him back to Canada as soon as possible."
Legal standards suggest Khadr would be tried as a minor. He has already served more than six years behind bars under abysmal circumstances.
Canadian law does not recognize the charges Khadr is facing before the military commission in Guantanamo Bay, but a detailed analysis by the University of Ottawa's law faculty found numerous Criminal Code provisions under which he could be charged in Canada.
They include relatively new laws enacted in the fight against terrorism as well older statutes barring Canadians from enlisting in a hostile foreign army or even high treason.
Prosecuting Khadr - either here or in the U.S. - would be difficult no matter what the charge, Macklin said.
"The evidence that would be used against him is likely to be so tainted because of the use of torture and other coercive methods that no court that operates under the rule of law . . . can legitimately rely on (that) evidence," Macklin said.
Like hundreds of others, Khadr was swept up in the fear of terrorism that followed the 9-11 al-Qaida attacks on the United States. Human rights concerns slipped to the periphery in favour of security as the war on terrorism gained strength under President George W. Bush.
In recent years, however, revelations of detainee torture and adverse court judgments - including from the United States Supreme Court itself - have led to a perception the Bush administration went too far.
Like Obama, even John McCain, the failed Republican candidate for the White House, committed to closing Guantanamo Bay and banning internationally condemned interrogation techniques such as waterboarding.
"There's been a shift occurring back to more of a balance between security and human-rights concerns," Byers said.
Macklin said the outgoing administration in Washington had wanted to make an example of Khadr by showing the military commission system in Guantanamo Bay could work.
Khadr was arrested in July 2002 in Afghanistan following a fierce firefight in which the compound he was in was flattened and he was gravely wounded.
It is at the end of that battle he is alleged to have thrown the grenade that killed Sgt. Chris Speer.
However, evidence heard at a pre-trial hearing a few weeks ago cast doubt on whether Khadr could possibly have thrown the lethal grenade.
The defence has raised the possibility that another survivor of the battle -- executed by the American troops -- may have thrown the grenade, or even that Speer perhaps was killed by "friendly fire."
