The Supreme Court is culpable in the Omar Khadr case

The Harper government is guilty of stonewalling– but that’s largely because the Court allowed it


Adrian Wyld/CP Images

Emmett Macfarlane is an Assistant Professor of Political Science at the University of Waterloo. You can follow him on Twitter @EmmMacfarlane

Seemingly lost in the controversy surrounding Omar Khadr and the federal government’s ongoing efforts to delay his return to Canada is the culpability of the Supreme Court of Canada in the entire affair.

Back in January 2010, the Court found that Khadr’s Charter rights had been violated by virtue of Canada’s participation in the regime of torture and imprisonment at Guantanamo Bay, Cuba. Despite this finding, though, the Supreme Court overturned Federal Court and Federal Court of Appeal rulings that ordered the government to request Khadr’s immediate return.

Basing the need for deference on the executive’s prerogative powers over foreign affairs, the Supreme Court decided to leave it to the federal government to determine how best to remedy the Charter breach. This was an unusual – and disturbing – move for a Court that in other contexts has made it clear that the Charter is not worth the paper it is written on without meaningful remedies.

Assessing whether the Court made the correct call in Khadr’s case quickly gets complicated because normally I’d be one of the first to applaud the type of deference the Court showed in this case. Providing absolute remedies in instances where a Charter violation has been found can run the risk of unnecessarily limiting the available range of policy options, something that elected governments, with a civil service at their disposal, are in a much better position to assess than courts.

Further, courts have always been reluctant to delve into matters of foreign affairs and the application of the Charter in international contexts is quite limited for reasons related to institutional competence.

In this case, however, the Court’s deference and its failure to provide a meaningful remedy for Khadr’s rights violations was wrong. First, the Court employed shoddy logic, arguing that an order to request repatriation might harm Canada’s foreign relations or might not result in success. The justices completely ignored the fact that Canada was the only Western country not to request the return of its citizen from Guantanamo. Indeed, the U.S. wanted (and continues to want) us to take him back.

Second, the Court made it clear in a 1985 case (Operation Dismantle v. The Queen) that prerogative powers were subject to judicial review on Charter grounds. The Court’s deference in Khadr’s case seems to backtrack a bit from that longstanding ruling.

There’s an inconsistency in the Court’s logic to the extent it suggests it’s somehow within the Court’s proper function to routinely strike down legislation duly enacted by an elected Parliament but off limits to interfere with decisions of the executive. This makes very little institutional sense, particularly when you consider that executive prerogatives can be limited by Parliament. To hold prerogative powers in higher esteem than Parliament itself suggests a skewed understanding of our political system.

None of this is to say that judicial deference in matters of foreign affairs isn’t usually warranted as a matter of policy. But having found a Charter violation, the Court failed in its duty to provide the only effective remedy. The government’s subsequent stonewalling – despite having agreed to take Khadr back to serve the remainder of his sentence following a plea deal – is proof not only of the executive’s continued failure to live up to its constitution and international obligations, but also of the Court’s failure to properly enforce them.

Those who object to Khadr’s repatriation argue, in simplistic but somewhat compelling fashion (emotionally, at least), that he is a convicted terrorist and that we shouldn’t want him in Canada. They dismiss the fact that he was a child soldier with a wave of a hand. And they ignore the fact that his plea deal was the fruit of a poisonous tree, the result of the very unconstitutional, illegal process that should have resulted in his repatriation before his lawyer ever pushed him to take it.

I’m not exonerating Khadr for his actions. Unlike some, I believe his age, while certainly a factor to be considered in the context of a legitimate criminal process, should not get him off the hook for terrorist activities and, arguably, treason. In some respects, Khadr’s status as a child solider is almost beside the point (indeed, in two Supreme Court cases dealing with Khadr the justices barely reference his youth).

What matters is the fact that Khadr is a Canadian citizen. And every citizen is protected by the same fundamental rights, whether we despise that person or not. These rights have not been respected. It is disturbing that the Supreme Court could make such a finding and yet essentially wash its hands of the matter.

The Court may have a chance to revisit its decision, particularly if the Harper government’s delay tactics continue and Khadr’s lawyers go to court to compel action. (Some have gone further and suggested that Khadr might be able to sue for damages and win. I’m not sure about this – I don’t particularly like the notion of damages for Charter violations – but it would be ironic to see the Supreme Court uphold a damages claim for which it was, in part, responsible.)

Regardless of what’s to come, it’s worth remembering how we got here. The Harper government is guilty of stonewalling, but that’s largely because the Supreme Court allowed it.


The Supreme Court is culpable in the Omar Khadr case

  1. “I’m not exonerating Khadr for his actions. Unlike some, I believe his
    age, while certainly a factor to be considered in the context of a
    legitimate criminal process,
    should not get him off the hook for
    terrorist activities and, arguably, treason.”

    You were doing well up to that point. Might I point out that as early as the previous para you were commenting on how some ” dismiss the fact that he was a child soldier with a wave of a hand.” …then promptly wave yours.

    Is the concept of a “child soldier” so irrelevant? Is the convention signed by Canada and the U.S. that irrelevant? What is the worth of Canada’s signature on an agreement? If a man is only as good as his word, what about a country? I think I am with Roméo Dallaire on this one.

    By virtue of the fact that he was forced to join Al Qeda ( sin of the father) you insist that he is a “terrorist”. Not only that, but took part in (unspecified) “terrorist activities” even though you acknowledge the “plea deal was the fruit of a poisonous tree”. If you put forth THAT argument then his “terrorism” is only alleged and not proven under law. But let’s not quibble.

    I have never seen any allegations of “terrorist activities” only of association. That is unless throwing a grenade (IF he even did that) in a theatre of war is a terrorist act. So by that same argument those Americans associating with the MEK (like Bolton, Guliani etc.) are, in your view “terrorists” and not merely paid schmucks.

    • Well, to be clear my reference to “terrorist activities” or “treason” was in the context of my argument that there needs to be “legitimate criminal process”. Khadr’s age should surely factor into any such process, and any punishment he receives if found guilty.

      I don’t dismiss his status as a child soldier in general, it’s very important. But in the context of my argument that he ought to be repatriated, it’s basically irrelevant: if Khadr was apprehended as a 22 year-old and all other events remained the same, his rights would still have been violated and there would still be a duty on the government to have him returned and deal with him.

    • He threw a grenade at medics who are protected under the Geneva convention. It is not exactly the same as throwing a grenade in a threatre of war….and who exactly is disputing tha the threw the grenade (ie: your “if he even did that”).

  2. Al Qaida
    Founded in 1988 by Usama bin Laden, Al Qaida serves as the strategic hub and driver for the global Islamist terrorist movement. The group’s goals include uniting Muslims to fight the United States and its allies, overthrowing regimes it deems “non-Islamic” and expelling Westerners and non-Muslims from Muslim countries. Al Qaida activities include, but are not limited to, suicide attacks, simultaneous bombings, kidnappings, and hijackings. Al Qaida has forged ties and strategic control over other like-minded Islamist terrorist groups and provides encouragement and inspiration to other affiliated and aligned groups around the world. The Al Qaida network has been directly or indirectly associated with the 1998 bombings of two United States embassies, as well as the 2000 bombing of the USS Cole. It was directly involved in the World Trade Center and Pentagon attacks of September 11, 2001 and in a foiled plot to bomb the New York subway system in 2009.

    Date listed
    23 July, 2002

    Date reviewed
    22 December, 2010

    • And this is relevant to the abuse of a 15 year old boy how?

  3. Canada should never be a safe haven for Al Qaida.

    • poof! your wish is granted!

  4. I think the Court’s decision would have made sense if they were dealing with a normal, sane government. Canada was the only western country that didn’t request repatriation of its citizen from Gtmo. It is now the only country in the world that appears to be refusing to take back its citizen, or stalling for absurd reasons, having made an agreement with the US that helped them convince him to plead guilty and give up appeal rights.

    The Court said they didn’t know what negotiations might already be underway. The US has been trying for years, since at least 2007, to get Khadr to confess and give up appeal rights in return for a deal on a sentence and release at the end of it. It was reasonable to assume that Khadr would request to serve out his sentence in Canada, and that Canada must be playing some role in the negotiations.

    The Court said the government’s policy should be within a legal framework and that it should decide how best to respond to the violation of Khadr’s rights. The Court probably didn’t expect the government would respond by screwing him on a transfer deal.

  5. the thesis was going along fine until you got to the apologist part. Your either for repatriation of a Canadian citizen ,’not an apologist’; I could hear Toews snicker when he got to your kangaroo court part.

  6. Personally, if Khadr IS guilty of treason, I`d still want him in a Canadian jail rather than the jail of a country that doesn`t always respect our national integrity. (Hmm . . . suddenly thinking of Conrad Black.)

    And if he isn`t guilty of treason in a large moral sense, he probably isn`t guilty of the other charges, and shouldn`t be in any jail. Yes, the grenade he may or may not have thrown was aimed at an American soldier, but we`re allies. Either way, he shouldn`t be in Guantanamo.

    I agree Khadr is someone most Canadians probably don`t want at home. (Hmm . . . suddenly thinking of Mulroney.) However, so are thousands of individuals from awful families who`ve spent years in domestic jails. Either all Canadians are treated the same by the law, or they aren`t. One way is a democracy. The other isn`t.

    • He’s pretty clearly guilty of treason in a literal sense. He fought on the opposite of a war from Canada. It would actually be absurd to hold him responsible for that under the circumstances. He was a 15 year old who was raised much of the time in foreign countries and he fought in a war based on the beliefs of his parents, recruited by his own father. Prosecuting him for treason would be not only absurd, but totally contradictory to the intent of the “child soldier” law, a law of both the US and Canada. In the early years after 9/11 Bush determined that no existing laws applied at Gtmo, but he was overruled later by the US Supreme Court. By the time the issue came before the Gtmo judge, the Military Commissions Act had superseded the “child soldier” law. There is no Military Commissions Act here and nothing has superseded the “child soldier” law.

      It was recommended to the government by many, including a majority in Parliament, that they should ask the US to send Khadr here for a trial for treason instead of trying him in the military commission system. They did not do this, either because they knew the US would refuse, or because they knew they could never win such a case. Some have made the ludicrous suggestion that now that the US has finally made their plea deal and convicted him, Canada should prosecute him all over again, for the same actions, but call it treason. It seems like some part of the Canadian population has taken leave of its senses. If the government has some solid reason to consider Khadr dangerous, there are measures they can take, but there is a lynch mob mentality loose in this country right now, that has nothing to do with security concerns or anything else reasonable.

  7. Haven’t read the judgment since it was first issued but I’m pretty sure the potential harm to relations with allies was a pretty minor factor compared to executive discretion (as long as we seem to be a on a “you were doing fine until….” tack)