Federal Court revisits Khadr

In the Matter of Omar Khadr was released by the Federal Court a few hours ago.  The Court, in brief, said that Khadr had not been afforded procedural fairness and ordered the Federal Government to take some step within seven days.  Part of the decision, and a link, follows:

 

[92] In this case, if the Court was satisfied on the record that the only potential remedy not yet tried by Canada that could cure the breach was to issue an order requiring Canada, before Mr. Khadr’s military commission proceeding commences on August 10, 2010, to request the U.S. to return Mr. Khadr to Canada, that order would be issued. I have previously stated that this is the only alternative remedy I can see that can potentially cure the breach. It may be, however, that Canada and/or Mr. Khadr can fashion other potential curative remedies. If there are others, and keeping in mind the ruling of the Supreme Court in Khadr II, it is the role of the executive, after providing Mr. Khadr an opportunity to be heard, to decide which of the alternative potential curative remedies to choose. It must continue that process until Mr. Khadr is provided with an effective remedy that vindicates his rights. As was stated by the Supreme Court in Doucet-Boudreau at para. 55:

 

 

… [A]n appropriate and just remedy in the circumstances of a Charter claim is one that meaningfully vindicates the rights and freedoms of the claimants. Naturally, this will take account of the nature of the right that has been violated and the situation of the claimant. A meaningful remedy must be relevant to the experience of the claimant and must address the circumstances in which the right was infringed or denied. An ineffective remedy, or one which was "smothered in procedural delays and difficulties", is not a meaningful vindication of the right and therefore not appropriate and just. [citations omitted]

 

 

[93] If after such a process there remains but one potential remedy that can cure the breach, then Canada must advance it; it is the only “appropriate and just” remedy.

 

[94] The parties deserve an opportunity to explore effective remedies. Given that Mr. Khadr’s hearing is scheduled to commence imminently, this process must be undertaken with some urgency and the Court must reserve the right to oversee this explorative process, to amend the short time frame set out in the Judgment for the steps that are to be taken, and to reserve the right to impose a remedy if none is forthcoming from that process.

 

http://cas-ncr-nter03.cas-satj.gc.ca/portal/page/portal/fc_cf_en/Index