There was a lot of nonsense in the media about this case. Some said the Prime Minister risks jail this week and other silly comments.
What the Federal Court actually said was that Omar Khadr's rights had been infringed and the Court saw one resolution was for Canada to seek Khadr's return. That said, the Court gave Canada seven days to propose other options. Absent those options being proposed the Court would order Canada to seek Khadr's return.
Canada was perfectly entitled to do nothing, recognizing that would lead to an order requiring Canada to seek Khadr's return.
By appealing Canada is probably seeking to delay matters until after the decision by the US tribunal on Khadr. If he is acquitted the issue is moot. If he is convicted Canada can say "why are we being asked to assist a terrorist murderer?"
Not a bad litigation strategy.
But it may not work -- it is far from clear the Court's order will be stayed pending appeal in which case the order requiring Canada to seek Khadr's return will issue.
Canada will appeal that but the hearing will probably be fast tracked and a result could be determined well before Khadr's prolonged trial ends.
Then Canada would face an issue -- failure to seek Khadr's return then could amount to contempt. But my sense is a final order of the Supreme Court is a way off and would be complied with.
Appeal of Khadr ruling sets off another legal battle in long-running case
Campbell Clark
Ottawa — From Tuesday's Globe and Mail
The Harper government has filed another last-minute appeal in a bid to avoid being forced to ask the United States for the return of Omar Khadr from Guantanamo Bay.
Last week, Mr. Justice Russell Zinn of the Federal Court of Canada gave the government seven days to come up with a list of ways to help protect Mr. Khadr's rights. Instead, the government waited the full seven days before Justice Minister Rob Nicholson announced an appeal.
10 comments:
Your the expert so I've got to ask.
Could this somehow end in the Courts deciding for the govt of the day that it has no choice but to make an appeal for the release of every charged or convicted person with a Canadian passport?
That seems pretty dangerous to me.
billg
Another reason Harper and Co hate the judiciary... It's unbiased, non-kneejerk, non-public-opinion-governed decisions...
Conservatives don't want fair. They only like mob rule.
Yet... when another country practices "mob rule" (see Middle Eastern nations in general) they scream "foul".
Anon: This case refers to a person who was a child soldier. UN/international and Canadian laws are pretty clear on child soldiers. Only a few rogue states (or rogue leaders/parties) don't accept the international declaration of human rights, and guidelines on the child soldier.
"Canada was perfectly entitled to do nothing, recognizing that would lead to an order requiring Canada to seek Khadr's return."
But Canada clearly didn't do "nothing", as you imply. The government asked the US not to use any evidence that was obtained by the breach of Khadr's charter rights. The US refused. What the judge has said is that if the US refused one solution to the charter breach then they must escalate the request and seek his return. My point has always been where does this end? The court appears to be saying they will be the arbiters of reasonableness yet they have none of the responsibility of being elected. I am deadly serious when I ask how far? Can he order an ambassador home? The closure of the embassy? A rescue mission? Can a judge declare war? Each is different only in degree and each is exclusively the prerogative of the executive branch.
For Western Grit:
This case refers to a person who was a child soldier. UN/international and Canadian laws are pretty clear on child soldiers.
Please, can someone teach progressives to read? Under the conventions regarding child soldiers 15 is NOT a child. If you don't like it please feel free to lobby the UN.
There are several branches of international law that forbid the recruitment of child soldiers. In 1977, the Additional Protocols of the Geneva Conventions set 15 as the minimum age for recruitment or use in armed conflicts. Article 77 of Additional Protocol I, states that parties to a conflict "shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them in to their armed forces." The Rome Statute of the International Criminal Court defines part of a war crime as "conscripting or enlisting children under the age of fifteen years into national armed forces or using them to participate actively in hostilities" (Article 8(2)(b)(xxvi)); and in the case of an internal armed conflict, "conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities" (Article 8(2)(e)(vii))."
To be very clear:
KHADR WAS 15
I agree (viewing the issue as a lawyer) there has been a lot of nonsense spouted (in fairness by both sides but more recently by proponents of Khadr's repatriation) on this issue. While this Government's commitment to the rule of law may be in question on other issues (detainee documents for instance) so far they have not refused to comply with any court orders. The govermentn has appealed, as litigants routinely do, to a higher court. I've never seen the act of appealing a lower court decision be characterized as a "disrepect for the rule of law" as it has here. The government was actually somewhat successful the only time the matter has been before the court that matters most. You're probably right that "a final order of the Supreme Court is a way off and would be complied with".
Rat, My note was not clear -- Canada clearly didnt do "nothing " -- that's the basis of Khadr's claim. What I meant was Canada could have let the 7 days run out, taken no step, and accepted that the order requiring Canada to seek Khadr's return would go.
The Rat said...
Please, can someone teach progressives to read? Under the conventions regarding child soldiers 15 is NOT a child. If you don't like it please feel free to lobby the UN.
Well said. Not a child. Not even a soldier. He goes to another country and murders someone from a third country (whose compatriots then save his life), and Canada should be seeking his return?
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