Now what?

The Federal Court of Appeal upholds the Federal Court’s ruling that the Canadian government is obligated to seek Omar Khadr’s repatriation.

Here is the decision in its entirety. Select excerpts after the jump.

The Crown objects strongly to the suggestion that Canadian officials participated in the mistreatment of Mr. Khadr. They argue that any mistreatment suffered by Mr. Khadr was at the hands of officials of the United States, not Canada. That argument is untenable in the face of Khadr 2008, but even without the authority of that case it cannot be accepted. It is true that the United States is primarily responsible for Mr. Khadr’s mistreatment. However, the purpose of the sleep deprivation mistreatment was to induce Mr. Khadr to talk, and Canadian officials knew that when they interviewed Mr. Khadr to obtain information for intelligence purposes. There can be no doubt that their conduct amounted to knowing participation in Mr. Khadr’s mistreatment…

The Crown has not offered an acceptable basis for concluding that Justice O’Reilly erred in this logical extension of his principal conclusion. The Crown’s challenge to this aspect of Justice O’Reilly’s reasons is a variation on its main theme, namely that the conduct of foreign affairs is a matter of Crown prerogative and thus within the sole purview of the executive. However, the Crown’s position on this point is not consistent with the principle that in Canada the rule of law means that all government action is potentially subject to the Charter and the individual rights it guarantees. The Supreme Court of Canada has already decided in Khadr 2008 that the Charter was engaged because the conduct of Canadian officials in the United States towards Mr. Khadr amounted to participation by Canada in the unlawful process at the Guantánamo Bay prison…

inally, there is no factual basis for the Crown’s argument that a court order requiring the Government to request the return of Mr. Khadr is a serious intrusion into the Crown’s responsibility for the conduct of Canada’s foreign affairs. The Crown adduced no evidence that requiring it to request Mr. Khadr’s return would damage Canada’s relations with the United States (see Burns, at paragraph 136). Indeed, when pressed in oral argument, counsel for the Crown conceded that the Crown was not alleging that requiring Canada to make such a request would damage its relations with the United States…

The Crown has not alleged or adduced evidence that Canada’s relations with the United States would be injured by requesting Mr. Khadr’s return, or that his return would pose a threat to Canada’s security. For that reason, it cannot plausibly be argued that “exceptional conditions” exist on the facts of this case so as to require a section 1 analysis of whether the breach of his section 7 rights is justified…

The Crown has offered no basis upon which Justice O’Reilly should have rejected this evidence. The assertion of the Crown in oral argument that that there is “one chance in a million” that the United States will comply with a request from Canada for the return of Mr. Khadr is not supported by any evidence. It is also contradicted by the fact that the United States has complied with requests from all other western countries for the return of their nationals from detention in the prison at Guantánamo Bay…

Contrary to the submission of the Crown, Justice O’Reilly’s order does not require the Attorney General to prosecute Mr. Khadr in Canada. If Mr. Khadr is returned, it will be for the Attorney General to decide, in the exercise of his or her discretion, whether to institute criminal proceedings in Canada against Mr. Khadr. While Canada may have preferred to stand by and let the proceedings against Mr. Khadr in the United States run their course, the violation of his Charter rights by Canadian officials has removed that option.




Browse

Now what?

  1. Quick: Has Harper *ever* been correct on a foreign policy matter? Or anything associated with Iraq and the worst of Bush's excesses?

    • he has a very poor grounding on legal matters generally (the least legally trained prime minister in decades, coupled with academic adherence to the shaky foundations of the Calgary School).

  2. I got $5 on Harper taking this one to the Supreme Court.

    • You think Harper would invest all this effort and time in denying Khadr his rights without going to the Supreme Court?

      That way, when he loses that appeal, he can tell all of his rabid red-meat base (who apparently believe our government should be border-line authoritarian), "well.. I tried, but these bleeding heart wimpy judges foiled me".

  3. I think the O'Reilly is doing his level best to squirm out of a bad place – read the very last section (always the case) because here is where he gets to the rub of this whole issue – essentially if I am not mistaken what he is saying is that … the ' Canadian Officials ' who questioned Khadr when he was first imprisoned in Gitmo – then may have shared information with the US officials whiched breached His Charter Rights and then as usual; with legal beagles -> poisoned fruit of tree throw the whole case out sort of thing. I don;t know I am torn on this one yes the judge is right but … I wonder how all of this will play out – mayhe Harper will appeal to the Supreme Court for a ruling and at the very end of all of this everyone knows what's going to happen = another ' Strong Diplomatic Note ' see file 13 (the circular one) being the ultimate destination of that note .. Obama will do what is in the interest of the USA and might say hot damn Stevie thank you yes sir you can have him back a.s.a.p- great news for Canada (NOT the taxpayer) .. or .. Nope sorry Stevie – oh well tried my best – next file please!

    • Hey Wayne.. you might want to re-read over the ruling. The Federal Court of Appeal UPHELD O'Reilly's ruling; therefore.. they ruled he wasn't trying to squirm out of anything that he ruled on.

      Its this embarrassment of a Conservative government we have that has tried to squirm out of its duty to Canadian citizens (just like they did with Abousian Abdelrazik.. just like they were doing with Suaad Hagi Mohamud – and will likely get sued over it).

    • Now you're just abusing the language. Please for the love of god, just read your post over before you hit submit. Then maybe you'd catch things like 'mayhe", and "whiched".

      It is never appropriate to use an arrow, or equal sign in a written medium.

      An ellipsis is used to indicate a thought that is trailed off, text that was omitted, or a pause in speech. You use them like a period.

      Please understand that you are communicating in a written medium. If you're not going to take the time to articulate your thoughts into something coherent, I'm not going to take extra time trying to figure out what in the hell you mean.

      If you write like someone in the third grade (that's being charitable), you'll be treated like one. Believe me, your posts aren't so exciting that we couldn't possibly wait two minutes while you cleaned them up.

      • Fearless prediction: he'll either ignore you or tell you that you need more fiber in your diet.

      • Just be glad he's not the sysadmin at your work, SW. Actually, the illegibility of Wayne's comments is partially my fault. He used to do a lot of copy/paste from other corners of the web so I did some Googling and called him on it. But at least the people he was plagiarizing could spell (which, of course, is what tipped me off in the first place).

  4. I can see the Librals pressing hard for this, one more desperatly needed Liberal voter will return to the GTA.

    • Do Conservatives see EVERY policy matter in terms of votes it can garner? Cuz I'm pretty sure the Libs don't look at this in terms of how it will play to their 'base'. Khadr is NOT a vote getter, but there are higher principles, ya know.

      • And where was that higher principle when Chretien/Martin did NOT come to Khadr's rescue??
        Like Sampson, Arar, and Khadr….Libs knew of torture and did nothing.

        • That doesn't give grounds for Harper to ignore the problem, or make the problem even worse, Wilson, This bleating about "well, the Liberals didnt do anything" was an old tired argument a year ago.

          • As much as I agreew ith you, ST, you really oughtta ease off a bit. "The Liberals were just as bad" is often the best argument they can come up with. (And it's not very often they can do that).

    • Actually.. we'll be pressing hard for this because it's one more example we've seen of the Conservatives trying to pick and choose who they want to help, and the courts saying they must treat Canadian citizens fairly and uphold their rights, and they can't pick and choose.

    • Dakota,

      I haven't noticed you around here since you libeled Abdelrazik as a polygamist. you are still repugnant.

      • Last I heard, Abdelrazik is living with his former wife and Child while still being married to a woman in Africa.

        • Maybe some day you'll get horribly sick and die!

        • I have never been party to a lawsuit before, but i truly wish that I could sue you on behalf of Abdelrazik for libel. does anyone know if that is allowed?

        • This post continues Dakota's implicit and explicit allegations of polygamy against Abousfian Abdelrazik. The majority of which are contained in this thread:

          http://www2.macleans.ca/2009/07/23/the-exiles-tal

          I beleive that this is a matter of defamation. Although he has previously claimed this was a matter of understanding, by implicitly suggesting that Abdelrazik is doing something immoral/illegal he is continuing the allegation.

          Further, in the past when others kindly and clearly presented him with information that the article he was referencing might be erroneous, including Scott M.'s explicit suggestion that this might be the accurate explanation: "Do you not think there's a chance that media has got it wrong? I'm much more likely to believe a person who said his wife died — he would know" he sarcastically dismissed that possibility ("Oh, I'm sure it is all a big mistake then. There is no way this guy could forget he was already married with children right? I wonder who the strange woman with the kids at the airport was then?") and then continued to suggest that Abdelrazik had committed polygamy.

          I think Dakota's posting privileges ought to be revoked.

        • This post continues Dakota's implicit and explicit allegations of polygamy against Abousfian Abdelrazik. The majority of which are contained in this thread:

          <a href="http://www2.macleans.ca/2009/07/23/the-exiles-tal…” target=”_blank”>http://www2.macleans.ca/2009/07/23/the-exiles-tal

          I beleive that this is a matter of defamation. Although he has previously claimed this was a matter of misunderstanding, by implicitly suggesting that Abdelrazik is doing something immoral/illegal he is continuing the allegation.

          Further, in the past when others kindly and clearly presented him with information that the article he was referencing might be erroneous, including Scott M.'s explicit suggestion that this might be the accurate explanation: "Do you not think there's a chance that media has got it wrong? I'm much more likely to believe a person who said his wife died — he would know" he sarcastically dismissed that possibility ("Oh, I'm sure it is all a big mistake then. There is no way this guy could forget he was already married with children right? I wonder who the strange woman with the kids at the airport was then?") and then continued to suggest that Abdelrazik had committed polygamy.

          I think Dakota's posting privileges ought to be revoked.

        • This post continues Dakota's implicit and explicit allegations of polygamy against Abousfian Abdelrazik. The majority of which are contained in this thread:

          <a href="http://www2.macleans.ca/2009/07/23/the-exiles-tal…” target=”_blank”>http://www2.macleans.ca/2009/07/23/the-exiles-tal

          I beleive that this is a matter of defamation. Although he has previously claimed this was a matter of misunderstanding, by implicitly suggesting here that Abdelrazik is doing something immoral/illegal by living with his ex-wife he is continuing the allegation.

          Further, in the past when others kindly and clearly presented him with information that the article he was referencing might be erroneous, including Scott M.'s explicit suggestion that this might be the accurate explanation: "Do you not think there's a chance that media has got it wrong? I'm much more likely to believe a person who said his wife died — he would know" he sarcastically dismissed that possibility ("Oh, I'm sure it is all a big mistake then. There is no way this guy could forget he was already married with children right? I wonder who the strange woman with the kids at the airport was then?") and then continued to suggest that Abdelrazik had committed polygamy.

          I think Dakota's posting privileges ought to be revoked.

        • This post continues Dakota's implicit and explicit allegations of polygamy against Abousfian Abdelrazik. The majority of which are contained in this thread:

          <a href="http://www2.macleans.ca/2009/07/23/the-exiles-tal…” target=”_blank”>http://www2.macleans.ca/2009/07/23/the-exiles-tal

          I beleive that this is a matter of defamation. Although he has previously claimed this was a matter of misunderstanding, by raising the Abdelrazik's current living arrangement he is implicitly suggesting that Abdelrazik is doing something immoral/illegal by living with his ex-wife. In short, he is continuing the allegation.

          Further, in the past when others kindly and clearly presented him with information that the article he was referencing might be erroneous, including Scott M.'s explicit suggestion that this might be the accurate explanation: "Do you not think there's a chance that media has got it wrong? I'm much more likely to believe a person who said his wife died — he would know" he sarcastically dismissed that possibility ("Oh, I'm sure it is all a big mistake then. There is no way this guy could forget he was already married with children right? I wonder who the strange woman with the kids at the airport was then?") and then continued to suggest that Abdelrazik had committed polygamy.

          I think Dakota's posting privileges ought to be revoked.

        • This post continues Dakota's implicit and explicit allegations of polygamy against Abousfian Abdelrazik. The majority of which are contained in this thread:

          <a href="http://www2.macleans.ca/2009/07/23/the-exiles-tal…” target=”_blank”>http://www2.macleans.ca/2009/07/23/the-exiles-tal

          I beleive that this is a matter of defamation. Although he has previously claimed this was a matter of misunderstanding, by raising the Abdelrazik's current living arrangement he is implicitly suggesting that Abdelrazik is doing something immoral/illegal by living with his ex-wife. In short, he is continuing the allegation.

          Further, in the past when others kindly and clearly presented him with information that the article he was referencing might be erroneous, including Scott M.'s explicit suggestion that this might be the accurate explanation ("Do you not think there's a chance that media has got it wrong? I'm much more likely to believe a person who said his wife died — he would know") he sarcastically dismissed that possibility ("Oh, I'm sure it is all a big mistake then. There is no way this guy could forget he was already married with children right? I wonder who the strange woman with the kids at the airport was then?") and then continued to suggest that Abdelrazik had committed polygamy.

          I think Dakota's posting privileges ought to be revoked.

          • Yours could have been revoked a long time ago – for stupidity. Your authoritarian streak is not pretty either. You should go find a small country to rule.

          • are dakota and scf the same scourge, er, I, I mean person?

  5. Any word on whether they'll appeal again?

    • They'll do some focus groups, internal polling, check out the vitriol on the right wing blogs, then decide.

    • Of course they will appeal. Do you think that Harper would have gone through all this trouble to keep Khadr in Gitmo only to give up now?

      • Here's a question: will Harper still be Prime Minister when Khadr sues the government for this yet another bumbling of a Canadian imprisoned abroad?

        • The way I see it, Canada is sure to go further into deficit given all the lawsuits from mishandled canadians in foreing land.

  6. Obama: We will trade you Harper for Khadr, straight up. We'll even throw in some soft wood lumber and a couple Nortel patents.

    • Hmmmm. We're looking to rebuild, not get older with Nortel patents. How about you drop the Nortel stuff and throw in a 2nd Round draft pick

      • 4th round and a bag of pucks (Sundin).

        Deal?

    • Too late.. all of those are already owned by US interests.

  7. If it goes to the Supreme Court and is upheld, could Harper invoke the notwithstanding clause?

  8. It depends if the ruling fell under Section 2 or Sections 7-15 of the Charter. The Notwithstanding Clause applies to those. Regardless, from my reading of the Charter, it says Parliament or a legislature of a province has to invoke the notwithstanding clause – it isn't an executive decision it appears. Given the makeup of the current minority Parliament, Harper wouldn't have the votes to override any ruling.

    • The notwithstanding clause applies to legislation (or such is my understanding), it's not just something you "invoke" verbally, and certainly not something the PM can just "invoke". It's not an "Ignore the Supreme Court for Free" card.

      I suppose the government could introduce legislation stating "Notwithstanding the Charter of Rights and Freedoms, the Government of Canada is hereby prohibited from asking for the repatriation of one Omar Khadr" or some such, but good luck getting that passed through Parliament. Harper can't merely "invoke" the notwithstanding clause in any case. It's not a clause that lets the PM just ignore the Supreme Court, it's a clause which can be inserted into legislation making said legislation legal and enforceable despite its technical unconstitutionality.

      Basically, it's of no use to the Tories here.

      Here's the relevant section of the Charter:

      Exception where express declaration

      33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

      Operation of exception

      (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

      Five year limitation

      (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

      Re-enactment

      (4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

      Five year limitation

      (5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

  9. Khadr should have been left to die. Frankly, I would personally spring for tickets to fly his entire family back to Pakistan for "interrogation".

    That family has caused nothing but trouble for Canada…and they should have been stripped of their citizenship ages ago and shipped out.

    Some folks here need to get their moral compasses degaussed.

    • You sir, are a douchebag. To openly wish for someone to die, and have their family tortured, then to turn around and suggest we need our moral compasses fixed? Douchebag.

      • Douchebag? I thought Halifax was having another kind of floater problem again…

    • In the words of Bart Simpson, the ironing is delicious.

    • I hope I am never accused of a crime in your country, let alone charged.

      Yes, the family has been nothing but trouble… let's bring him back, try him, and bring this whole spectacle to a conclusion. We are supposed to be a modern country; time to act like one.

      And I would check your moral compass if I were you… you want to strip citizenship from Canadians and willingly fly people to their insinuated torture/death. **Hyperbole alert** Would that be your Final Solution?

      I thought we were supposed to be better than the terrorists, not as morally bankrupt and barbaric as they are.

      • Conservatives are very borderline authoritarian at heart.. they want to pick and choose who gets rights and who doesn't. JamesHalifax is merely one of the more extreme examples of this.

  10. Rob Nicholson was just on Rutherford, saying the government will carefully read the court ruling, and decide on a course of action.
    Rutherford pressed him a bit, but he didn't tip his hand one way or the other.

    • That's the standard answer from this government when they've been handed a stinging defeat in the courts. The same bland statement was said after the Aboufisan court case when the Federal Court's decision was first released ordering him to be allowed to return from Sudan.

      • What did you expect? The decision was released half an hour ago. It's hardly unwise to actually want to read the decision before commenting on the next step.

        Unless of course you think governments should just say how high when a court says jump. In which case, as a Liberal, you really need to re-evaluate your position on health care after Chaoulli…

        • It's very UNWISE to keep pushing for this against all logic and legal rulings. Can they not be so damned obstinate with thier bankrupt ideaology? Rights are rights and it doesn't take the wisdom of Solomon to realize that!!

  11. At the press conference in Quebec, Harper was careful to say he believed it was a split decision (no, it was a majority decision), and that the justice department would review the recommendations. These are not recommendations, however. This is not report. These are DECISIONS handed down by JUDGE.

  12. This confuses me as well. Its almost like Harper can't stand the idea that he could be wrong or can't stand being told he is wrong. This may not be the case but from what i have heard about his ego and him thinking he is always the smartest person in the room i'm willing to entertain the thought.

  13. There are reasonable grounds for appeal. Even on the issue of whether Mr. Khadr's rights were violated by the last government, Justice Nadon has given a strong opinion that they were not:

    "Although I am far from convinced that Canada had a duty to protect Mr. Khadr, I need not address that issue in view of the conclusion which I have reached with regard to the steps taken by Canada to protect him. In my opinion, Canada has taken all necessary means at its disposal to protect Mr. Khadr during the whole period of his detention at Guantanamo Bay. Consequently, assuming that Canada had a duty under section 7 of the Charter to protect Mr. Khadr, it did not breach that duty in the circumstances of the case."

  14. There is also a large constitutional issue raised by this case, which it would be useful to have the SCC determine. As Justice Nadon puts the concern:
    In my opinion, the remedy granted by O'Reilly J. exceeds the role of the Federal Court and is not within the power of the Court to grant. Ordering Canada to request the repatriation of Mr. Khadr constitutes, in my view, a direct interference into Canada's conduct of its foreign affairs. It is clear that Canada has decided not to seek Mr. Khadr's repatriation at the present time. Why Canada has taken that position is, in my respectful view, not for us to criticize or inquire into. Whether Canada should seek Mr. Khadr's repatriation at the present is a matter best left to the Executive. In other words, how Canada should conduct its foreign affairs, including the management of its relationship with the US and the determination of the means by which it should advance its position in regard to the protection of Canada's national interest and its fight against terrorism, should be left to the judgment of those who have been entrusted by the democratic process to manage these matters on behalf of the Canadian people.

Sign in to comment.