Another expert on why the top court didn’t go further on Khadr

by John Geddes

News that the Canadian government won’t try to bring Omar Khadr home from Guantanamo Bay, despite last week’s Supreme Court of Canada ruling that Khadr’s rights have been violated, raises questions about the point of the court’s decision.

Legal advocates for Khadr contended the government had no choice but to seek Khadr’s repatriation, after the court found Canada had violated his rights by having an official interrogate him in 2004 after the Americans had subjected him to sleep deprivation.

But that seems to have been a misreading of the decision. Earlier I posted on the views of Eugene Meehan, a smart lawyer who follows the Supreme Court as closely as anyone. He said the court left it up to the government to “decide what to do, or what not to do.”

Another expert well worth listening to is Prof. Gerald Gall, who teaches constitutional law at University of Alberta, and is president and chair of the John Humphrey Centre for Peace and Human Rights. I asked Gall for his read of why the court didn’t order the government to do something to remedy the violation of Khadr’s rights.

He said simply declaring that Khadr’s rights were violated is itself a very traditional sort of remedy. “A declaratory judgment is really no more than a statement by the court as to the state of the law,” Gall said.

Of course, the judges could have gone further. They didn’t largely because the remedy on the table—ask the Americans to send Khadr home—didn’t seem practical. “It’s ultimately unenforceable,” he said. “To order the Canadian government to seek the repatriation of Khadar might not lead to his repatriation because the American government would not budge one iota.”

And issuing a futile order, Gall added, would reflect badly on a court. As well, he said, like Meehan, that the court is generally cautious about directing government actions.

For those concerned about Khadr’s condition and future, it’s all enormously frustrating—as Gall readily concedes. No doubt the nine judges on the court who jointly issued the judgment know they have not satisfied those focused on the fate of the individual.

But rather than helping Khadr, they might have in mind preventing a future government from repeating the mistakes of this sorry case. “Often,” Gall said, “decisions give direction on future government action.”




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Another expert on why the top court didn’t go further on Khadr

  1. I don't like several parts of the decision and much prefer the majority's reasoning at the court of appeal. But the "it might not work" part is probably the bit that sits the least well with me. Yes, the Canadian Supreme Court can't force the U.S. gov't to do anything, but that shouldn't be a factor in preventing ordering the Canadian government to do something. if the court had asked, I'm the sure guy would have said "yeah it might not work, but let that be my problem."

    • And as much as I respect Gall I think he's not exactly phrasing it correctly or he's being improperly quoted. I see no reason why the order itself – that the Canadian government request Khadr's repatriation and not undermine the order with any othre communications or gestures – should be enforceable. it just might not result in the Americans saying yes.

  2. What Gall is trying to say that if there is a decision passed in favour of repatriation, and it is not enforceable, it sets a precedent and future decisions can't have much weight and that it WON"T force a change to anything that way. It's a crappy decision – I fully agree – but if it doesn't have any weight and we set precedence, this could be more dangerous.

  3. I'm no lawyer (and I'm about to demonstrate that). It strikes me that the practical outcome of the decision is an acknowledgment by the court that the Federal government can, directly or indirectly, violate a Cdn citizen's rights with impunity so long as that violation is in some way beyond the government's ability to remedy. Isn't this decision very nearly a license for a rogue government to more or less run wild?

    Lawyers out there should feel free to berate my ignorance, I can take it.

    • I wouldn't go quite that far but in this very specific instance the government can't be forced to order a particular discrete and practical remedy, despite the violation of the rights of a Canadian by Canadians.

  4. It is obvious to me that the Canadian government is denying the rights of this Canadian citizen to a fair trial for the crimes of which he is accused, simply because they are terrified of the political fallout from will be revealed should that happen. Will we ever know what really happened that day and what has gone on since Khadr was incarcerated without trial? Not if the Harper government can help it.

  5. To order the Canadian government to seek the repatriation of Khadar might not lead to his repatriation because the American government would not budge one iota.”

    The professor seems awfully certain and definitive as to what the Americans' reaction to a request for repatriation would be considering that the Americans have agreed to every single other request for repatriation from every Western government who's ever asked (which was every single Western government with a citizen in Gitmo). There's a reason Khadr is the only Western citizen still at Gitmo, and it's that every other Western government got a "yes" when they asked that their citizens be repatriated, including adults accused of crimes every bit as serious as the crimes of which Khadr is accused.

    How can he so definitively assert that the Americans will treat a request from our government in this case in the exact opposite manner to which they've treated every other similar request ever made?

    • I agree. How does it set a precedent in the unlikely event the US says no? What on earth would Obama gain by thumbing his nose at a Canadian Supreme court decision…i view this as a failure of nerve by our top court.

  6. “Often,” Gall said, “decisions give direction on future government action.”

    Yes, and in this interpretation of the decision isn't the direction for future governments here "As long as a Canadian citizen is in the custody of a foreign government, then Canadian agents can interrogate that citizen to their hearts content with no concern as to said citizen's constitutional rights whatsoever, and the Supreme Court will do nothing more than say 'You violated his rights, but we're not actually going to DO anything about it'"?

    Isn't this interpretation a blank cheque for CSIS and the RCMP to interrogate Canadian citizens held abroad as though they had no legal rights at all?

    • At first blush it looks like the Supreme court has cast itself as bystanders or impotent handwringers.

    • No. The SCOC has provided the declaratory judgment that the Canadian citizen's rights were violated. That is a message to future Canadian governments that such behaviour overseas is not permitted. You may not like it, but the final court of appeal now is the Canadian electorate, to judge the 'remedy' that is now the responsibility of the executive.

      This interpretation is basically consistent with common sense. The Commander-in-Chief of a foreign army is not required to submit to the decision of the SCOC. And the SCOC has wisely said that it cannot possibly deal with all the nuances of foreign diplomacy by telling the government of the day that it must adopt stance 'X' or 'Y' but not 'Z' in advancing Canada's interests abroad.

  7. Thanks for the update John.

    One of the things that stood out in this decision (at least for me) was that the decision was rendered by The Court. This is quite different from a unanimous decision, as many in the media are portraying it. Decisions by The Court have generally been the hallmark of Reference decisions rather than appeals from a lower court.

    (The Same-Sex Marriage, Quebec Seccession and Manitoba Language Rights References – to pick three – were all determined by The Court. I do note that the Patriation Reference from 1981, wasn't decided by The Court, but that case actually started in the Manitoba Court of Appeal.)

    Decisions by The Court tend to read as matter of fact descriptions of what the law is, much like law texts, rather than having the argumentative style of majority decisions. Ordinarily even unanimous decisions of the SCC have an author identified. Not so here.

    You might want to pose that issue to your next legal scholar. Personally I find it hard to believe that several of the justces would have signed onto this decision if it had been a regular, suportyour-argument decision.

    • First off, decisions attributed to "The Court" are not "different from" unanimous decisions; they are a subset of unanimous decisions. Still unanimous.

      Second, there are plenty of non-reference decisions that have been attributed to The Court; I could be wrong, but so far as I know they outnumber the reference decisions.

      Third, the reason why the Patriation Reference wasn't attributed to The Court is quite simple: the decision was not unanimous.

      Finally, and most importantly, while I think your description of decisions by The Court as "matter of fact descriptions of the law" might be true of the United States Supreme Court, it is not so in Canada. In fact, the SCC seems to attribute unanimous decisions to The Court primarily in important/controversial cases, where the justices wish to give the impression of the Court speaking as one voice. The decision in R. v. Latimer, for instance, was issued by The Court.

  8. Omar Khadr is a terrorist. What the hell does anyone in North America care about him? He is part of a group that wants to abolish all of us. Let's take care of him and his groupies and abolish them first. Let him fry!

    • The USA made the mistake of granting Geneva POW protections to this (and many other) unlawful enemy combatant(s), when Geneva basically permits signatory nations to ignore the protections for this class of non-soldier belligerents. As such, if Geneva protections are deemed to apply, it is incumbent upon us all to see that the protections apply properly.

      • The USA didn't grant Omar Khadr, or anyone, POW status. They weren't part of a regular armed force.

        The detainees are treated as accused criminals. If they committed a crime against civilians, like the 9/11 terrorists, they are now being tried in civilian courts.

        Omar Khadr is being treated as a soldier but one who fought with an illegal group, so he's being tried for "war crimes" by a military commission, where the rules are looser.

        Omar Khadr DOES meet the definition of a child soldier under international law because he was recruited into Al Quaeda at the age of 10 by his father, and he was captured after a fight with the American military at age 15.

        He should have been rehabilitated at 15 not treated as a war criminal.

        This is from the American Civil Liberties Union on the subject of the Canadian Supreme Court declaring Khadr's rights violated and refering to the Optional Protocol on the Involvement of Children in Armed Conflict.

        http://www.aclu.org/human-rights/canadian-supreme

        • Sigh….again, he is not a child soldier. He does not meet the only operational definition used to convict anyone by the ICC, which is Under 15, not 15 and under.

          The time of recruitment doesnt matter, except for those who recruited him…ahem, where is the war crimes indictments of those who recruited or facilitated him, as in his Mother! You cant have it both ways.

          As for POW status, it doesnt apply, stricly speaking as he is was an uniformed irregular, not deserving of the status accorded to uniformed soldiers of a state. That doesnt mean he becomes a non person, it jsut doesnt afford him access to certain procedures. If there was a peace treaty signed just what country would he have been returned to that was at war with the US?

          He was found on a battlefield, not car jacking an Escalade in Brooklyn.

        • Please note, I did not say POW status. I recall G.W. Bush's stance: these are unlawful enemy combatants, and as such do not earn Geneva protection, but we (the USA) are a moral civilized country and we will afford them the protections that Geneva offers anyways.

  9. We should not be spending so much time and money on someone who has deliberately joined a terrorist group, killed an American soldier, and disrespected the country in which he calls home. Omar Khadr deserves the death penatly and so do all who dare to cross paths with those who wish to live free lives among this planet.

    • A person who was brought to the Al Quaeda terrorist camps at age 10 cannot be said to have deliberately joined a terrorist group. By 15 he had been raised mostly in a foreign country and was involved in its war, as a child soldier under international law. The definition includes people recruited into armed groups like AQ or the Taliban. Charging him as a war criminal is ludicrous.

      The money Harper had to spent was on court cases because he's violating the law.

      • Charge his mother with recruiting child soldiers and I will buy this argument.

  10. Re: the idea that a court ruling for forced repatriation would be futile since the Americans wouldn’t cooperate… I’m fairly certain I heard that Canada is the only — or one of the only — nations that has not successfully repatriated its citizens from Guantanamo. If others have been repatriated, what is different here?

  11. The government is still vulnerable and liable, potentially, for the rights violation done back in 2004, so if remedy is not deemed to be appropriate by the court then Khadr can sue for damages. In fact one doubts that any remedy, including his repatriation will not stop him suing, so whats the incentive.

    As far as remedying the breach….getting the evidence obtained expunged is a remedy. It isnt clear that getting him repatriated is a remedy, simply because he is up on trial. If the expunging of the Canadian evidence results in him being set free due to lack of evidence then the goal of repatriation is acheived. However, repatraition before he was convicted of his alleged crime is justice denied. In my opinion the evidence being expunged is an appropriate remedy and then the prosecutors can decide if they have enough evidence to attempt conviction.

    I think the decision was very clear minded, not getting lost in all spaghetti sauce against the wall reasons Khadr's advocates were taking. we may still have to compensate the guy, but that horse left the barn 6 years ago when the rights violation took place.

    • Nobody's in favour of just turning him loose. There's an extensive plan that was prepared by lawyers and advocates. He could also face trial here.

      I don't see how eliminating the Canadian evidence could possibly result in him being set free. He was in a fight with the military with an illegal group. The contradictory evidence re the grenade has nothing to do with the Canadians. One report says he was the only one left alive but the other says he wasn't. They also found a video of him where he looks to be working with IED's. After he was captured he showed them where some were placed too, where the military were expected to be. All this alone would be enough to convict him in the military commission system. He's accused of spying, besides (possibly the translating he did).

      The people advocating for his repatriation haven't suggested just turning him loose and a fair trial is possible too.

      • 1) His alleged crime was agianst an American. There is nothing for him to be tried for here.
        2) His reintegration program? Right, lets feed him more religon, when that is what was fueling it in the first place, regardless of interpretation I think the young man needs less religous intruction not more. That his mother and sister would be involved is an enormous problem. They are the ones that need reformation.

        Dont be fooled, there is no trial here in Canada. If the US decides there is no evidence once his illegally obtained Canadian evidence is expunged then fine he can return here, as is his right. But if the US decides they wish to try him based on evidence other than what the Canadian government passed along in 2004 then they should try him and if found guilty sentence him. Their problem not ours

  12. I agree to repatriate him so long as we bring back the death penalty, that way we can hang him after being tried for treason. Otherwise let the scumbag rot in a U.S. prison.

  13. Apparently we have conveniently ignore the fact that Canada's Constitution is an entrenched constitution. As such, it is a supreme law. The government is bound to obey the direction of the Supreme Court of Canada that has, presumably, ruled that Khadr's constitutional rights have been violated. Giving the government the right of way to decide Khadr's case therefore offends the Constitution while demonstrating that the highest court in the land can be rendered impotent. What we have is a situation where the Harper Government has refused to exercise State Authority over its citizens and in the process makes a mockery of our entrenched constitution. There is now an ever present danger that precedent has been set where a State Authority can turn its back on its citizenry and allow a foreign government to dictate what it can and cannot do. The Canadian Constitution is supposed to guarantee individual and group rights, and we are not seeing it in Khadr's case. Canada must exert its sovereignty and bring Khadr back to Canadian soil. Canadian court should decide on his fate.

    • If a canadian committs murder in Florida the Canadian government has no jusrisdiction over him/her. Once the person is convicted then the government could request that the time be served in Canadian prison, but the Canadian has no rights, and the Canadian government has no obligations to do so.

      If Khadr is convicted we can request to have him serve is sentence here, or not, and if he is not convicted then he is welcome to live here. Whats so complicated about that?

  14. SO IF AMERICA GOVERNMENT WONT BUDGE ON ONE IOTA DOES THSI MEANS CANADIAN GOVERNMENT IS AFRAID OF US GOVERNMENT? SO ONE RIGHTS IF IT COMES TO AMERICA CAN BE EASILY VIOLATED IS THAT WHAT IAM HEARING?

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