Lawrence Martin at The Globe:
At issue is not whether Mr. Khadr is innocent or guilty of killing an American medic during a firefight in Afghanistan in 2002. For argument’s sake, let’s say he’s guilty. Let’s say he knew what he was doing as a 15-year-old, that he had not been brainwashed since he was 8 by his al-Qaeda father. Let’s say that his action in the firefight was unprovoked, that prison-guard reports that he is well-behaved and salvageable are hogwash, and that he is basically rotten to the core.
Even if this were all true, any self-respecting society that believes in the principles of fundamental justice would not respond to his case the way Canada has. Omar Khadr has been held eight years without trial.
In the Canadian litigation context itn is far more esoteric than that. Its clear that the Canadian government breached Khadr’s rights. No one except a few right wing loons really disputes that.
It is less clear to what extent the courts can dictate foreign relations to the government or in other words whether the particular remedy sought is an appropriate one for the courts to order. As far as I’m aware I’m not familiar with any other cases where a court dictated what representations must be made to a foreign government before.
KC: You would be correct. The courts stay out of foreign affairs. There have been similar cases in the UK which have reached the same conclusion.
Nevertheless, I think the tide is turning away from recognizing the executive’s prerogative in the foreign affairs arena as being absolute. The first step was recognizing that foreign affairs decisions are reviewable by the courts. The second step was to (not surprisingly) recognize that the Charter applies to foreign affairs decisions, and that such decisions must conform to the constitution.
The SCC’s decision in Khadr 2 failed to take the next logical step: to insist upon a particular remedy. I think it is only a matter of time before the Canadian courts wade into those waters. They can only stand by for so long while a Canadian’s rights are being violated. At some point they will have to act and force the government’s hand, since the government has shown a stubborn unwillingness to protect its citizen.
I look upon this as an opportunity for Canada to break new ground in the common law world.
I’m not so sure. I think if they were going to wade into those waters they would have waded into them earlier this year when they released Khadr 2010. He’d already been there for almost ten years when the decision was released. I don’t think the purpose of the decision was–as I think Judge Zinn seems to think–to send the message ‘if you don’t soon, we will’. There was a lot of apprehension about that remedy in the Supreme Court’s judgment.