The question before the Federal Court of Appeal was whether judges ought to be ruling on an area of foreign policy. The majority said they could and should because the matter was not one of mere policy -- Canada had acted. The dissent said the Court should keep hands off.
Because there is a dissent there is a much higher chance of an appeal to the Supreme Court -- that will take a year to 18 months.
In their majority ruling, Justices John Evans and Karen Sharlow said Canada must act because Canadian officials violated Mr. Khadr's Charter rights by interrogating him at Guantanamo while he was under duress and then sharing that information with the Americans.
"While Canada may have preferred to stand by and let the proceedings against Mr. Khadr in the United States run their course, the violation of his Charter rights by Canadian officials has removed that option," their decision states.
"The knowing involvement of Canadian officials in the mistreatment of Mr. Khadr in breach of international human rights law, in particular by interviewing him knowing that he had been deprived of sleep in order to induce him to talk, 'opens up a different dimension' of a constitutional and justiciable nature," they wrote.
Mr. Justice Marc Nadon dissented from his two colleagues' position. He agreed with the government's view that the courts should not be deciding whether Canada should request Mr. Khadr's repatriation.
"It is up to Canada, in the exercise of its powers over foreign policy to determine the most appropriate course of action in dealing with the US with regard to Mr. Khadr's situation," he wrote in a dissenting judgment
James Morton
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4 comments:
I agree they will appeal, if not for anything else, to prolong long this as long as possible. Even without a dissent, I think they would have again as a stalling tactic to appeal to their much loved base.
I found the suggestion that Harper was in pursuit of "executive prerogative", in the manner of Bush (in Mcleans magazine), a provocative thought. That notion would be consistent with Harpers other "American initiatives".
Any thoughts, Jame?
And how many years did the Liberals have to bring this killer home to Canada?
Liberals have absolutly no say in this matter. They are just blaiming the Cons for what they should have done.
Until you look at yourself, do not blame the Cons - but that is the Liberal way out - blame others for your short-commings.
Let the American justice system look after this matter.
I want to know, now that the courts have decided twice that they can, at least in certain circumstances, compel the government to act in a matter of foreign policy - essentially setting foreign policy - where does this end? Can the courts demand any action or just compel the request for repatriation? If the US says no and the government does nothing more can Khadr go to court again and argue for more forceful requests or other action? Could the courts decide that Canada must impose sanctions or mount a rescue operation? After all, the difference between compelling a note demanding Khadr's return and mounting a rescue mission is only one of degree - they are both options that are traditionally the prerogative of the elected government in dealing with foreign nations. I can hardly wait until some judge decides Canada can or cannot, must or must not go to war.
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