Sunday, August 16, 2009

Khadr -- on to the Supreme Court?

It would be surprising if there was no attempt to seek leave to appeal to the Supreme Court. The Federal Court has ruled in a way that trenches directly on the foreign policy autonomy of the Federal Crown. It may well be that any Federal government (Liberal, NDP, Conservative) would appeal.

The best compromise might be for the Feds to say "we'll ask for Khadr, but not because we're ordered to, and we'll appeal anyway". That way the matter is ended but the legal issue remains alive. The appeal could then quietly be delayed a while and ultimately withdrawn as moot.

Will Harper do that? Perhaps not but consider this -- what if the SCC ordered a new (majority?) Conservative government to ask for Khadr and the government didn't? (Granted, we all know there will be a majority Liberal government by then but imagine).

What now? (And could one imagine the Conservatives saying the order is outside the Court's jurisdiction and ignoring it?).

Perhaps we are looking at a Constitutional crisis coming down the track?

Harper hints at appeal of Khadr ruling

Federal Court of Appeal upholds decision ordering Ottawa to seek Khadr's return from U.S. military prison

Bill Curry
Ottawa— From Saturday's Globe and Mail

Prime Minister Stephen Harper is hinting his government will fight on in court rather than comply with a second decision ordering his government to ask the Americans to release Omar Khadr from Guantanamo Bay.

Speaking with reporters, Mr. Harper said officials will be reviewing yesterday's 2-1 ruling from the Federal Court of Appeal before announcing the government's next move. However, he twice highlighted the fact that one of the judges sided with the Crown.

"I'm aware there is a decision that has been rendered. Apparently it is a split decision," Mr. Harper told reporters today in Chelsea, Que.

That comment leads one constitutional expert to predict the government's next move will be to seek leave to appeal to the Supreme Court of Canada.

"I think the federal government would be wanting to hang its hat on the dissent because it so clearly agrees with its position," says Michael Lynk, the associate dean of law at the University of Western Ontario. "The dissent, in my view, gives them enough hope that - whether or not they win at the Supreme Court - they certainly can wait another eight to 15 months."

3 comments:

KC said...

"The best compromise might be for the Feds to say "we'll ask for Khadr, but not because we're ordered to, and we'll appeal anyway". That way the matter is ended but the legal issue remains alive. The appeal could then quietly be delayed a while and ultimately withdrawn as moot."

I've wrestled with that issue as well. I'd like to see some representations made by the government on behalf of Khadr but adamantly disagree with the idea of 1) a positive constitutional obligation on the part of the government to assist Canadians imprisoned abroad and 2) such far reaching judicial interference into the exercise of foreign affairs. But you're right--if he comes back the issue will be moot and non-justiciable, and we'll be left with the uncertainty of the FCA being the final authority on the matter.

Can't the SCC just speed up their regular processes? Didn't they do just that for BCE?

Brent said...

Any rulings made by the Supreme Court on the issue would have to be very carefully worded. Khadr is basically a mercenary who was captured fighting an allied nation, but if the SCC decides that the government has no obligation to protect or assist Canadian citizens imprisoned abroad, then the government would be able to use that ruling as a legal precedent in any potential case involving a Canadian citizen arrested on false charges in a country such as Iran or North Korea.

On a side note, what mechanism can the SCC use to enforce its rulings against the government?

Anonymous said...

Omar Khadr fought for an enemy against Canada.

That is the actual definition of "treason".

Khadr should be tried for treason and left to rot in jail for life.