The Supreme Court of Canada hears the Omar Khadr case this Friday. The Court is asked to consider ordering the federal government to seek Canadian custody for Khadr. The Federal Court both at first instance and on appeal ordered the federal government to seek Khadr's return to Canada.
Federal lawyers intend to fight Mr. Khadr's return. In a scathing brief to the Supreme Court, they called the Federal Court order to seek Mr. Khadr's return "an unprecedented and unprincipled remedy."
Who will win?
And what will happen if the federal government loses?
At first blush it seems implausible that the Supreme Court would make an order regarding what is essentially a policy matter -- and yet recent Court decisions have not hesitated to reconsider government policy choices. Moreover, Khadr was interviewed by CSIS officers so arguably the matter isn't policy but practice. My guess is that the Court will uphold the Federal Court.
But what can the Court order? To direct the federal government to take "all steps necessary to request Khadr's delivery to Canadian custody"? How do you enforce that? And if the federal government ignores the order or sits on it what then? The Court risks losing authority if it makes an unenforceable order.
Well, wiser heads than mine will grapple with the matter shortly ... .
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
3 comments:
Why have judges been more willing in recent years to rule in areas previous courts would not? Those that cheer this decision should remember that Khadr was detained while a Liberal government sat, was questioned by CSIS under a Liberal government, and it was a Liberal government that did nothing to repatriate Khadr. This is in the Conservative's lap now, certainly, but this could very well be a court ordering a Liberal government to reverse policy. If we allow political thoughts to rule our positions on court decisions like this I fear we may regret it when governments change.
"How do you enforce that? And if the federal government ignores the order or sits on it what then?"
So the system of checks and balances that are meant to protect the citizens from government abuse... has no actual power?
What is "best effort"? If they ask once, get told no, then what? How many times do they have to ask? And this is where I get worried, what if the courts decide asking isn't enough? How far can they go? Can they order sanctions? Can they order an ambassador home or out of Canada? Can they order a rescue mission? How about they order us to declare war? Each is a diplomatic statement separated only by degree. If the court can order one, they can order them all.
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