I have read it several times now (it's short for a Supreme Court decision) and it seems to say:
1. Khadr's constitutional rights were infringed;
2. The Court can remedy that infringement even where so to do trenches on Crown prerogative;
3. Here the Court won't grant a remedy beyond saying there has been a breach because the government will do the right thing.
Here's what the Minister of Justice said in response to the decision in Khadr:
"The Government is pleased that the Supreme Court has recognized the 'constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canada's broader interests.'

The Supreme Court overturned two previous lower court decisions and ruled that the Government is not required to ask for accused terrorist Omar Khadr's return to Canada.
Omar Khadr faces very serious charges including murder, attempted murder, conspiracy, material support for terrorism, and spying.
The Government will carefully review the Supreme Court's ruling and determine what further action is required."
Squaring the circle is hard but it is difficult to imagine decision that is more ambiguous. Khadr creates an amorphous precedent saying the Court can, but need not, intervene when a Charter right is breached by the exercise of Crown prerogative. The government will almost certainly not ask for Khadr's return (see the statement above) and the matter will return to Court.
Perhaps the Court realised it did not have the actual authority to enforce an order (what if the government just said no? Contempt?); perhaps it was afraid of a constitutional standoff. The decision has the feel of going to the edge of the pool but then backing off before jumping in.
The trouble is, with this decision, Rome has spoken but the case goes on ... .
(Just for completeness, here is the text of s. 24(1) of the Charter:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.)
6 comments:
"Khadr's constitutional rights were infringed."
Were they infringed because the government is not actively working to bring him home or were they infringed because he got sent there in the first place?
-David
David - have you not been paying attention????
I really beginning to doubt the intelligence and general awareness of you reading audience Morton. They certainly as a group don't seem to understand the real political implications of much of what is going on but they also don't seem to comprehend the important contrast between de facto and de jure issues in relation to the different branches of government. But then I am surprised how few lawyers don't comprehend this relation.
Anon, Technically because Canada cooperated in the unlawful investigation and questioning.
Kirby -- Hi! glad to see you're back!
Thank you, James.
Kirby; Was that so difficult?
The media has different conclusions. Some are saying the Gov't has no obligation to bring him home. Others esp. G&M call this a stand off or clash between the Gov't and the supreme court.No doubt the politicians (all sides) will decide which conclusion is in their best political interest and run with it.
It is disappointing that after several years and god knows how much money that this is the best they could do.But,what do I know? I am not a lawyer.
-David
Other than the actions of the CSIS officials, the ruling had little to say about events outside their jurisdiction. As it should be.
And if sleep deprivation and Subway sandwiches constitute torture, I'll have mine with extra hot peppers.
Sleep deprivation and sexual mortification were given as examples of torture occurring at Guantanamo. As I have said before, that sounds like a particularly fun slumber party to me. If the definition of torture is, well, tortured itself to include such mild stress situations we have really lost all perspective on the realities of war and terrorism.
I guess we could just behead the jihadis we capture and release videos of it. That seems acceptable if the measure is the outcry we here from our liberal friends over such acts.
Post a Comment