The anticipated ruling by the SCC in Prime Minister of Canada v. Omar Khadr was released today, and already there is criticism of the decision that ruled that although Khadr’s s. 7 rights were violated, the court could not order the Prime Minister to seek his return.
One of Khadr’s lawyers, Nathan Whitling, said,
He has never had a whole lot of hope in terms of the Canadian government, in any event.
One of Khadr’s other counsel, Dennis Edney, stated,
I will say that the court has the belief that … the Canadian government has a moral conscience and will do the right thing. I will tell him, ‘And that’s what we have to pray and hope.’
Alex Neve of Amnesty International, an intervenor in the case, stated,
It is not open to the Canadian government to just yawn and not take that seriously now. There has to be an effective response that demonstrates that this government is prepared to stand up for rights of Canadians and is prepared to take seriously judgments of the Supreme Court of Canada, even if the court did not feel inclined to say specifically what the Canadian government has to do here.
In a decision with so much responsibility shifted to the political arena, it’s no surprise that politicians are weighing in as well. Michael Ignatieff, leader of the opposition, said of the government,
The only thing it can’t do is to do nothing because the court clearly said that the rights of a Canadian citizen have been violated.
But some of the strongest critiques have come from academia, specifically the The David Asper Centre for Constitutional Rights at the University of Toronto.
In a press release sent to this site Diana Juricevic, Director of the International Human Rights Program at UofT Faculty of Law, stated,
We are very disappointed with the decision. Remedies have to be meaningful in order for Charter rights to be taken seriously. The Supreme Court of Canada has failed Khadr. They have left the decision on what the appropriate remedy is to the Canadian government, which breached Khadr’s fundamental human rights in the first place.
Cheryl Milne, Executive Director of the David Asper Centre for Constitutional Rights, said,
One hopes that the strong pronouncement by the unanimous Court that Canada has violated Omar Khadr’s rights and that the impact of that violation continues unless the government acts, will carry sufficient weight with the Prime Minister to persuade him to do the morally and legally right thing– seek Omar’s repatriation.
And finally, Professor Audrey Macklin, who acted as co-counsel in the case, expressed her frustrations,
The Supreme Court of Canada has spoken clearly, definitively and unanimously on the past and ongoing present violation of Omar Khadr’s rights by the Canadian government. It has pointed to a request for repatriation as an appropriate remedy for the violation of those rights. It now falls to the Prime Minister to do what the Supreme Court of Canada encourages but does not force him to do. If the word of the Supreme Court of Canada that the government has violated Khadr’s Charter rights and should seek repatriation is not enough to motivate this government to act, then I am not sure what is enough to motivate this government to do the right thing.
The lack of remedy makes this a farcical judgement.
This decision shouldn’t come as a surprise to anyone. It certainly wasn’t to me. The court has traditionally refused to wade too far into actively dictating the conduct of foreign affairs. Heck until 2001 the court wasn’t even prepared to stop the government from extraditing people to face the death penalty.
Maybe I’m biased because I don’t care to venture too far from our borders, but I think that if you want your charter rights guaranteed by our courts you have to stay within the geographical boundaries of this country. I’m not cosmopolitan enough to think otherwise. There is a certain risk in travelling abroad that must be borne by the individual rather than by all Canadians (admittedly Khadr’s case is problematic as he was taken outside our borders as a minor by his parents).
There will be cases like that of Abousfian Abdelrazik where your s. 5 rights are being blatantly vioalted by the government but in terms of a positive justiciable obligation on Canada to actively assert charter rights in countries where there is no charter is a bit too much.
The best case for young Mr. Khadr is moral–that it is the right thing to do to insist that the US at least respect its own constitutional principles with respect to due process (under which there is no way he could continue to be detained) or send him to Canada. I think the court made the right decision here though. The remedy requested was simply inappropriate. As the saying goes, tough cases make bad law.
It is to be hoped and prayed that the present government in Ottawa, which has followed and pandered to the American government in all its incarcerating persons for years without charges or a fair trial, that Ottawa, after being seen to be undermining rights for many Canadians, that the Harper government will in the end be embarrassed enough to at least go through the gestures of calling upon the American Government to honour its own American Charter of Rights and recognize that an accused person has the right, by way of being a Human Being, to be charged and without delay and long incarceration, (habeus corpus) be honoured the right to answer the charges in a Court of Law of his own Country. All the other countries of the Detainees were sent home; why does the present Canadian government not recognized that this particular Canadian Citizen, Omar Khadr should be treated with the same Human Rights? The answer is that the Harper Government is a racist government and a government that does not opppose the rule through violence. Mr Harper, if he respects Democracy and rights and freedoms, should do as he has been asked to do….. to do the right thing and to bring Omar Khadr home to his own country to answer the Charges made against him by the American Army.