Khadr goes up to the SCC

‪‪‪"After careful consideration of the legal merits of the ruling ... the government has decided to seek leave to appeal the decision to the Supreme Court" of Canada, Foreign Affairs said in a statement.

With today's news that the Khadr case is going to the Supreme Court, at least for leave, I thought it useful to look at what the decision says about reviewing the foreign policy decisions of the Federal government.  

Certainly one can argue there is an intrusion into the peculiar jurisdiction of Crown policy making. 

That said, the Federal Court of Appeal says it is within the Court's power to oversee such policy, Harper v. Khadr 2009 FCA 246:   

[58]           Further, Crown prerogative in the conduct of foreign affairs has already been held to be subject to the Charter. For instance, when Canada is asked pursuant to a treaty to extradite a Canadian citizen to stand trial in another country for an offence punishable by death, the Minister of Justice must refuse the request in the absence of an assurance from the prosecuting authorities that they will not seek the death penalty. Thus, in United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, the Court reviewed the constitutionality of the Minister's decision to surrender Burns, saying (at paragraph 38):

We affirm that it is generally for the Minister, not the Court, to assess the weight of competing considerations in extradition policy, but the availability of the death penalty, like death itself, opens up a different dimension. 

Similarly, 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. 

[59]           Finally, there is no factual basis for the Crown's argument that a court order requiring the Government to request the return of Mr. Khadr is a serious intrusion into the Crown's responsibility for the conduct of Canada's foreign affairs. The Crown adduced no evidence that requiring it to request Mr. Khadr's return would damage Canada's relations with the United States (see Burns, at paragraph 136). Indeed, when pressed in oral argument, counsel for the Crown conceded that the Crown was not alleging that requiring Canada to make such a request would damage its relations with the United States.
James Morton
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