Full of sound and fury, signifying nothing

Interesting piece in Ottawa Citizen:


http://tinyurl.com/ycmzdng



The Supreme Court of tut-tutting


By Amir Attaran, Citizen Special



It is a victory, but it is also bizarre. Last week's Supreme Court ruling in Omar Khadr's case found that Ottawa pulled off a hat trick of shocking illegality. Canada's government violated national law, international law, and the Constitution -- quite a feat.

But did the Supreme Court order the government to do anything about serially breaking the law, such as to ask for Khadr back? No: the court's punch was pulled. To do otherwise, the court said, would interfere with the prime minister's freedom of decision. The court decided only to give a judicial declaration, in effect tut-tutting at the government's illegality.

If this sounds curious, it is. But it is also increasingly normal for the Supreme Court, which is drifting toward becoming the country's leading Supreme Court of Advice.

...

No matter what you think of Omar Khadr, the judgment makes unsettling reading. It advertises the fact that even when Canada's highest court heartily agrees illegality exists, it may refuse to remedy it. In the past, the justices rarely turned away litigants seeking a mandatory remedy with a mere advisory opinion. Under Chief Justice Beverley McLachlin's increasingly timorous leadership, however, they are doing so with unusual frequency.

It is an unwise and unwelcome trend.

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When courts, by their own admission, advise there is an illegality but in the same breath let it persist, that is not the rule of law. At best, it is rule by law -- something quite different. In treading into this unsatisfactory terrain, the court's judgments increasingly bring to mind Macbeth's lament: "it is a tale ..." Shakespeare wrote, "full of sound and fury, signifying nothing."

One wonders if the Supreme Court has reflected on the risks of advisory declarations, for its own sake.

Given the government's decision, announced yesterday, that it would not seek to repatriate Khadr, despite the court finding that Canada's illegal conduct "continues to contribute to (his) current detention," it is now very likely that the court will find itself faced with Khadr's case to solve for a third time -- a self-evidently pathetic fact which makes the court look effete, and which damages the institution.
...

Orders of that kind give abundant room for the exercise of executive discretion or the accommodation of practical realities, but without sacrificing the rule of law.

Amir Attaran is a professor in the faculties of law and medicine at the University of Ottawa.