By Kashif Ahmed, Special to The StarPhoenix
November 13, 2009
Friday the 13th often is disparaged as an unlucky day, or conversely, lauded as one that brings good fortune. Canadian citizen Omar Khadr and human rights advocates certainly are hoping it’s case of the latter.
Today, the Supreme Court of Canada will hear what may be its most important case of the year — whether or not the federal government should ask for Khadr’s repatriation from the Guantánamo detention facility. The stakes are high for both fundamental Canadian rights and for Khadr, who is the only western national still imprisoned in the notorious modern-day gulag.
Since 2002 and the age of 15, Khadr has languished in a virtual legal limbo and deteriorated physically. At question is the failure of successive governments, both Liberal and Conservative, to bring him home after observing years of pseudo-legal games by the Americans and despite firm evidence of his inhumane treatment, including repetitive sleep deprivation.
Canada’s stance on Khadr’s treatment is in stark contrast to the actions of our allies, including Great Britain, France and Germany, that long ago repatriated their citizens from Guantánamo.
Ruling in 2008 on the disclosure of documents in the Khadr case, the Supreme Court stated that his detention was a “clear violation of fundamental human rights protected by international law.” Furthermore, it said, the government became complicit in that breach when CSIS agents interviewed Khadr in 2003 while knowing he had been mistreated and “softened up” to make him more compliant.
The argument the government makes in this challenge of the Federal Court of Appeal order to repatriate Khadr is all too familiar and equally weak — that he’s under American jurisdiction. The military commission trial system has been severely criticized by U.S. courts, so much so that President Barack Obama ordered a full review and the eventual closing of Guantánamo.
The government further argues that the Khadr affair is a foreign policy issue and thus outside the scope of judicial examination. This contention is tenuous at best, given that the consequential impact is on the constitutional rights of a Canadian, not on some broad foreign policy objective of the government.
Most interestingly, Crown counsel conceded before the Supreme Court in 2008 that essentially there was no risk to bringing Khadr home. This factual admission signals a different set of reasons from the government to prevent Khadr’s return. In the absence of any other rationale, we can only speculate that the government’s motivation to prevent Khadr’s return is to avoid subsequent embarrassment.
But, the Khadr case also speaks to a more central issue of concern: The protection of basic rights and interests of Canadians detained abroad.
We have already witnessed the disturbing treatment of Maher Arar, Abousfian Abdelrazik and others. Their ordeals opened a window into the isolation and abandonment of Canadians when they are beyond Canada’s borders and at their most vulnerable.
Certainly, the Khadr family’s controversial public pronouncements haven’t been helpful. Also troubling is their tale of living in Afghanistan alongside notorious extremists, although little is known about Omar himself.
Nonetheless, popularity cannot and should not be used as the litmus test to determine whether a Canadian is afforded human rights and due process. One’s reputation or that of one’s family is not the crux of the matter, although some have attempted to make it the lead talking point. Public perception and a sordid family history can never be the basis upon which rights are accorded to some citizens and denied to others. Second-class citizenship is neither an answer nor can it be tolerated.
Do we really want a false dichotomy between security and human rights to take root in the Canadian narrative? Like it or not, Khadr is a Canadian. Nothing the government or commentators say will alter that.
And despite public misgivings, this case is of great importance to all Canadians, not just to human rights activists and advocacy groups.
The only true “test” that binds our courts, our society and our country is the Charter of Rights and Freedoms — that essential edifice of our values and the only narrative worth defending.
I don’t think the governments legal arguments are weak at all. To the contrary, I think that to rule in Khadr’s favour the SCC will have to break some trail in constitutional jurisprudence. Some of the weaknesses in Khadr’s legal case as I see them are:
– Jurisprudence about the territorial limits of the Charter.
– The tenuous link between his interrogation by Canadian officials and his continued detention.
– Deference to the Government – Like it or not the conduct of foreign affairs has been largely unfettered by the courts up to now.
– The irrelevance of his citizenship – Khadr’s case has been made on the basis of s.7 which applies to EVERYONE not just citizens which makes the implications of a decision in his favour that much greater. Does the government have an obligation to seek the ‘repatriation’ of EVERYONE in Khadr’s circumstances?
I can’t predict litigation. No lawyer would do that. 20 years ago I would have said no way to the SCC upholding the decision, but given the disappointing tendency of the court in recent years to expand positive rights jurisprudence (see the Health Services case) it is that much harder to predict. But the governments case is anything but “weak”. If Khadr wins it will be because of the political or moral views of those on the court, not established constitutional principle.
Valid points KC. The SCC decided a remedy order would be going too far, indeed.