The key in the decision seems to be that the requesting state, here the United States, took a leading role in the initial detention of Khadr in Pakistan. The requesting state paid a significant, and secret, bounty ($500,000) for the arrest and encouraged Pakistan's federal intelligence service to hold Khadr unlawfully in Pakistan for a lengthy period. The Court further found Khadr had been seriously abused in Pakistan and while such abuse was not directed by the requesting state it was, or ought to have been, known to the requesting state.
In effect, Khadr was unlawfully detained and abused and the actions of the requesting state linked that state to the wrongdoing.
The Court then considered the remedy of stay and held that the requesting state had dis-entitled itself from relief by taking steps that undermined the integrity of the judicial system and which the Court had to disassociate itself from. The Court acknowledged a stay was appropriate only in the clearest of cases but held the present case amounted to such.
The case is interesting for several reasons. First, the misconduct in Pakistan did not lead to Court to find the case for extradition was not made out. The Court found, but for the stay, extradition for terrorist related activity would follow. Second, the Court's reasoning -- that only by imposing a stay would the interests of justice be met -- applies the American test for exclusion of evidence and not the Canadian test of bringing the administration of justice into disrepute. In fairness, the Court did say this was an extreme case but the test applied is subtly different from that normally seen.
Some might wonder if the case for extradition for terrorist activities was made out why should the wrongful acts of the Pakistan authorities protect Khadr from an American prosecution. The linkage between the two crimes (the terrorist activity and the breach of rights) is temporal only. Perhaps the best answer is that the stay here is used to limit the future breach of rights -- of course, one might then ask, ought the Courts to be acting to deter wrongdoing in general as opposed to dealing with the immediate case before them?
Challenging questions. An appeal will no doubt follow.
1 comment:
What I ask is ought the court be releasing someone they admit has been involved in terrorist activities into Canada? If they are concerned about preventing future breaches of this poor bugger's rights shouldn't they also concern themselves with preventing the future killing of Canadian troops, Canadian civilians, or anyone else for that matter? It's no wonder criminals and terrorists laugh at us, we're willing to commit suicide (or in the case of this court, willing to let a murder occur) rather than bend some ethical rule.
All I can hope is that the one who pays the price for this travesty is one who agrees with it. I doubt it will be, though, because terrorists don't tend to hit gated communities or cocktail parties, they hit shops and business centres, places where our ivory tower overlords would never go. I'm sure the nanny or the chef takes care of chores like that.
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