Omar Khadr and the rule of law

Dan Gardner explains that the Khadr case is not about national security so much as it’s about holding the federal government to its obligations under the constitution:

In 2010, a federal court judge agreed that the involvement of Canadian officials in Khadr’s detention and interrogation brought the Charter of Rights and Freedoms into play and that Khadr’s Section 7 right to security of the person had been violated. It ordered the government to ask the American government to send Khadr back to Canada. The federal court of appeal agreed. So did the Supreme Court.


But then the Supreme Court balked.

Traditionally, courts have been very deferential to a government’s exercise of its prerogative power to direct foreign affairs. And for good reason. Courts have not the expertise, capacity, or mandate to conduct foreign affairs. But they do have the expertise, capacity, and mandate to uphold the Constitution, including the Charter of Rights and Freedoms — which had clearly been violated.

The Supreme Court tried to square the circle. “We conclude that the appropriate remedy is to declare that, on the record before the Court, Canada infringed Mr. Khadr’s s. 7 rights, and to leave it to the government to decide how best to respond to this judgment in light of current information, its responsibility for foreign affairs, and in conformity with the Charter.”

So the Supreme Court didn’t order the government to ask for Khadr’s return. It did not order the government to act at all. But given the gravity of the ruling, it clearly expected that the government would act.

Facing a grossly unfair trial, and life in Guantanamo if found guilty, Khadr accepted a plea bargain of eight more years in prison, with transfer to Canada after one. The government signed on. Does that honour the Supreme Court ruling? It’s hard to see how it does. But at least it’s something.

Or rather, it would have been something if the government had upheld the bargain. But it hasn’t. Instead, the government has pretended Omar Khadr doesn’t exist.

In doing so, the government has disregarded the Constitution and ignored the Supreme Court. Arguably, it has even been contemptuous of both.

Omar Khadr is a citizen of this country. What you think of him doesn’t matter. He is a citizen. And if the government can do this to him, it can do this to any citizen.

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