The Commons: ‘This is an exceptional case’

Inside the Supreme Court for the matter of Prime Minister of Canada vs. Omar Ahmed Khadr

by Aaron Wherry

The Scene. As a general rule, the higher the ceiling, the more important the proceedings that fall beneath it. So it is that there is something more than 20 feet between floor and ceiling in the Supreme Court. And so here it was that the justices took their place at precisely 9am this morning and announced a start to proceedings in the matter of Prime Minister of Canada et al. v. Omar Ahmed Khadr.

The government’s man this day was a short fellow, blessed of a large forehead and mess of hair at the back, wearing small glasses in the middle of his face. His opening gambit was suitably dramatic. The court, he ventured, had no more authority to tell the government to request Mr. Khadr’s repatriation, then it had to decide that the ambassador be recalled or warships be amassed along the border to enforce that repatriation.

“We’re a long way,” one justice ventured shortly thereafter, “from recalling the ambassador.”

Perhaps. Though maybe just barely.

For sure, it seems ridiculous that the current Prime Minister would go to such a length for an end result he is fighting at the highest level to avoid. But then however preposterous that hypothetical, it is surely not much more preposterous than the current situation.

Seven years since he was dispatched to a foreign prison that is now widely regarded as a blight on our society’s reaction to global terrorism, Omar Khadr remains a prisoner of the United States. He may or may not be complicit in the death of American soldier Christopher Speer during a skirmish in Afghanistan. He has not yet been tried. He has alleged various kinds of torture. And, given his upbringing and age at the time of the battle in Afghanistan, he is regarded by many as a child soldier.

Since a Canadian official interrogated Mr. Khadr after he had been subjected to sleep deprivation by American authorities, the Canadian government was found to be complicit in his mistreatment and in breach of his Charter rights. Earlier this year, the federal court ordered the government to seek repatriation as a remedy to the abuse of Mr. Khadr’s rights. After the federal court of appeal upheld that ruling, the Supreme Court was asked to intervene, the second time a matter involving Mr. Khadr has reached the highest legal forum in this country.

It was the job of the government’s man to explain what parts of this the government found most unreasonable. The executive, he said, maintains “full discretionary authority.” The government, he explained, has acted consistently on Mr. Khadr’s behalf, making various requests and demands of the American administration. It has provided a “principled reason” for refusing to request his repatriation. Mr. Khadr, he stressed, faces “serious charges.”

“We’re in the realm of diplomacy here,” he said. He expounded on the lack of precedent. ”Let the process play out,” he advised.

“It’s been a long time unfolding,” a justice observed.

The room felt crowded. Nine justices at the front, seated behind wooden desks, elevated by a marble stage. Before them four rows of lawyers in black robes, then four rows of spectators, many of whom had lined up outside for at least an hour beforehand in hopes of winning a seat. To the left, a row of reporters. To the right, a row of clerks. Six tall windows, nearly floor to ceiling, lighting the proceedings.

After an hour, the floor was yielded to Mr. Khadr’s lawyer, a solidly built man with neatly cropped hair. He reported that there was news from the United States. That some prisoners were due to be moved from Guantanamo, but that Mr. Khadr was not likely to be among them. Shortly thereafter, with Mr. Khadr’s lawyer fully into his remarks, an e-mail bulletin brought news that Mr. Khadr might be moved, though to where it was unclear. Sometime later came confirmation Mr. Khadr would be moved, if only to face the same military commission his representatives and various observers consider to be profoundly flawed.

The justices eventually pinned Mr. Khadr’s lawyer on the primary matter at hand: the request for repatriation and whether such a thing would constitute a proper remedy. “Obviously,” he conceded, “this is a unique case.”

Still more questions, the justices poking and prodding the respondent as they had the appellant.

“Well,” Mr. Khadr’s lawyer said, “it’s the best Canada can do … Canada should be required to do what it can.”

He finished with a request that the court expedite its decision, apologizing for his audacity in asking as he did so.

After a short recess, time was allotted for interventions. Representatives from Amnesty International, Human Rights Watch, the Canadian Coalition for the Rights of Children and Justice for Children and Youth, the British Columbia Civil Liberties Association, the Criminal Lawyers’ Association of Ontario, the Canadian Bar Association, Avocats sans frontieres Canada, the Canadian Civil Liberties Association and the National Council for the Protection of Canadians Abroad allowed 10 minutes each to make separate pleas on Mr. Khadr’s behalf.

“This is an exceptional case,” ventured one, “with extraordinary circumstances.”

Midway through these, a bulletin from the Liberal party press office: “The Conservative government’s indifference to human rights abuses experienced by Canadians stranded abroad is on display in the Supreme Court today, as they continue their vendetta against former child solider and Canadian citizen Omar Khadr, Liberal MPs said today.” Then word that Pierre Poilievre, apparently because absolutely no one else was available, would be appearing before reporters on the Hill to offer the government’s view of the day’s events. Later, news arrived that the American attorney general was not necessarily opposed to letting Mr. Khadr return to Canada.

In the courtroom, the questions piled. What of international, domestic and constitutional law? What to make of precedent? What about fundamental justice and human rights? How to define the authority of the court, the discretion of the Prime Minister and the responsibility of both? Profound abstracts derived from a crushing and indefinite reality—adding to all that Omar Khadr already represented.

The government’s man was given 10 minutes to respond and he quickly reviewed his concerns with some of what the court had heard. He attempted at one point to differentiate between those who cause or contribute to torture and those who are complicit in torture.

After four hours, the court reserved judgment and rose. It may well be months before a decision is offered.




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The Commons: ‘This is an exceptional case’

  1. Hey I heard a brief rumour that the yanks might televise the court sessions – that would be way cool!

  2. "The government's man was given 10 minutes to respond and he quickly reviewed his concerns with some of what the court had heard. He attempted at one point to differentiate between those who cause or contribute to torture and those who are complicit in torture."

    Now that would be an interesting arguement…any chance of hearing it?

    • Not from Aaron Wherry, no.

      Kady O'Malley did a creditable job live-blogging the arguments, though. The justices seemed concerned, as they should be, about assuming a right to intefere in matters of foreign policy and inventing remedies that don't exist in law. They also pointed out that the alleged violations of Mr. Kadhr's rights happened many years ago, if at all, and were not an ongoing violation that they could order stopped.

      • The justices seemed concerned…about assuming a right to interfere[sic] in matters of foreign policy and inventing remedies that don't exist in law.

        Requesting Khadr's repatriation would have neither “interfered with” nor “invented” anything. It would have been an act totally in concert with diplomatic routine, especially in cases where the government suspects that the juridical terms according to which the subject has been arrested and interned are irregular, unclear or significantly offensive to international norms. We spared no pains, rightfully, to demand the release of Maziar Bahari. Clearly, demanding justice and transparency from Iran is one thing; demanding the same from the United States is quite another–is, in fact, given our tradition of colonial obsequiousness, quite unthinkable.

        • It wouldn't be unheard of for the government to take such actions. The unprecedented nature of the relief requested is to have the courts attempt to direct the government on its exercise of foreign policy discretion.

          It does not appear any of the intervenors were able to point to precedent that might allow the court to take this action. I'm not saying the court won't adopt that power – the fact they asked questions about it is never an indication of their leanings one way or another in most cases. But there is a difference between the government choosing to intervene with another country, and the court ordering it to do so.

          • The unprecedented nature of the relief requested is to have the courts attempt to direct the government on its exercise of foreign policy discretion.

            The requested relief is unprecedented only because its object and the supine inertia of the government in response to it are also unprecedented.

            You and the government persist in arguing that the Khadr case is strictly a question of "foreign policy". If it were so, the remedy would be even more obvious than it is, as current policy, established through convention, concerning the government's minimum responsibility towards Canadian citizens detained in foreign lands under specious pretexts directs the government to request that Khadr be quickly charged and tried according to the legal norms of the nation of his detainment or immediately released.

            More importantly, though, the fundamental question at issue is not "foreign policy" but the government's legal responsibility to adhere to the binding treaty obligations to which it is a signatory–a matter not of foreign policy but of law and fully within the competence of the court.

          • This particular remedy is so far unique because normally it wouldn't occur. But involvement foreign policy on the whole is not unprecedented, as the Charter may be applied in cases involving extradition.

  3. One cannot but find it astonishing that the spine of Stephen Harper's argument is that the Khadr case is essentially political and diplomatic rather than juridical–as if the question of the legitimacy of Khadr's detention and "trial" is more properly arbitrated through situational diplomatic necessity than through respect for Canadian and international norms of justice.

    This is just one more example of how thoroughly Canadian values have been debauched by our post-9/11 genuflection before American GWOT paranoia and the squalid moral compromises that have flowed therefrom. It's a more flagrant example than even the Arar fiasco.

  4. I know the court is ruling on legal matters (what the judiciary does and does not have the right to intervene in) rather than ethical ones, but I very much hope the ruling requires Harper to request Khadr's return.

    He's been held in the US without trial for several years; during that time it is possible, even probable given what is known about US conduct at Guantanamo, that he was tortured. It is possible he may be innocent of the crime he was accused of. He was 15 when captured, not a legal adult. All those facts combined make it impossible to avoid the fact that Canada should have demanded his return from the United States years ago. If there is going to be a trial (I don't know if he can be tried in Canada) it must be in a civilian court, according to the usual standards of civil liberties, and without the government declaring evidence inadmissible.

    The Canadian government, both Liberal and Conservative, have acted greatly contrary to justice. Allowing a Canadian citizen to be held overseas, on the presumption of guilt with no trial, by a government that commits torture, for years, is simply unacceptable behaviour.

    • Well, sympathetic as I actually am to Mr. Kadhr, given the family into which he was born, it should be recalled that there are at least 2 million Canadian citizens resident in other countries. I don't think Canada can afford to adopt a general rule that every one of those citizens accused of a crime is entitled to free return to Canada and a trial at our expense. Sometimes living abroad does involve accepting the risk that you will be subject to judicial proceedings not up to our standards.

      Traditionally, the Canadian government has tried to ensure foreign governments allow consular access and live up to their international agreements on justice. We have never taken the position that Canadians are entitled to be returned home for trial. That would be a new, and very expensive, principle to establish.

      • There are extenuating circumstances here. Where else would we allow a foreign govt to hold a citizen without trial for seven years, with allegations of torture and where there is contradictory evidence as to whether he even commited the crime and an open question whether we are in violation of our international obligations. As Sir F says, it''s just because it's the US. Our cowardice is self evident. Or are you arguing that political considerations trump justice?

        • I'm wondering about Khadr's trial by military commission instead of civilian court. I mean, it is only for military personnel, right? And quite obviously, terrorists by definition are not necessarrily considered military personnel by the U.S.–otherwise those other detainees wouldn't be going to civilian court. So, the U.S. considers Khadr to be a soldier–one who was fifteen at the time of his capture. So now, in spite of Canada's signature on the international agreement on child soldiers (the one that puts someone under 18 in the child-soldier category) Canada's position is to allow military justice–the kind without the usual protections afforded to an accused under civilian law. I don't know exactly what those differences are, but I believe some rules of evidence are allowed that would never pass civilian requirements. While I know this decision to try Khadr in military court came down at the same time the Supreme Court hearing was going on, I've got to think that allowing this presents a continuing violation of international law and his Charter rights.

        • I'm wondering about Khadr's trial by military commission instead of civilian court. I mean, it is only for military personnel, right? And quite obviously, terrorists by definition are not necessarrily considered military personnel by the U.S.–otherwise those other detainees wouldn't be going to civilian court. So, the U.S. considers Khadr to be a soldier–one who was fifteen at the time of his capture. So now, in spite of Canada's signature on the international agreement on child soldiers (the one that puts someone under 18 in the child-soldier category) Canada's position is to allow military justice–the kind without the usual protections afforded to an accused under civilian law. I don't know exactly what those differences are, but I believe some rules of evidence are allowed that would never pass civilian requirements. While I know this decision to try Khadr in military court came down at the same time the Supreme Court hearing was going on, I've got to think that allowing this presents a continuing violation of international law and his Charter rights.

      • He hasn't been subjected to judicial proceedings. He's being held without trial, and was tortured. And yes, in those circumstances Canada has a duty to intervene. We should have acted earlier, but as a minimum standard we need to act now and get the facts about torture and whether he's actually guilty – particularly given that there is not evidence strongly indicating that he is not.

        The only reason for the US to try him by military commission while trying far more dangerous people (who we know for a fact have been tortured) in civilian court is because they recognize they don't have the necessary evidence to convict Khadr according to normal proceedings.

  5. Here's another extraordinary aspect of this case. Pierre Poilievre, the official spokesperson of the Government on this issue today, wont say whether the Government would comply with a Court order requiring it to seek repatriation. From the Toronto Star: "[Poilievre] refused to clarify if his statement means the government would ignore a Supreme Court ruling order to seek Khadr's return from the U.S."

    Maybe Poilievre doesn't understand that it's a fundamental principle of our democracy that the government MUST comply with the decisions of the courts, no matter how much it dislikes them. Or maybe the government is intentionally threatening a constitutional showdown with the Supreme Court — playing a game of constitutional chicken.

    And for what? To make sure that a Canadian gets to spend what's left of his youth in detention waiting for the U.S. finally to get its act together and give him his day in (quasi-)court? They've had 7.5 years to prosecute him; that's more than enough. Certainly we'd never tolerate letting someone languish in pre-trial detention in Canada for seven years awaiting trial in a Canadian court. Why do we let the U.S. do it to one of our citizens without even the hint of protest?

    Even in the darkest of the Bush years, the Bush Administration always affirmed that they would abide by the decisions of their Supreme Court. Apparently the Harper government has even more contempt for the rule of law than that one did.

  6. No court in Canada should have the power to order a government to take diplomatic action of any kind. The courts have assumed greater and greater authority based on their “reading in” expansions of the Constitution. The Constitution is a matter for Canadian voters, or at the very least those whom they elect. This is another case where the not withstanding clause should be used if necessary, to put these un-elected pompous asses in their place.

    • The charter is in effect whether you like it or not. And the overwhelming majority of Canadians are fine with that.

      • You like the Charter so much? YOU go dock at Guantanamo to enforce it.

        • This is craven even for yourself. Nobody is asking anyone to to anywhere guns ablazin. They are asking for an order that the Canadian government issue a request that a prisoner be returned to Canada.

          • Alrighty then. Ottawa asks, and Washington flips 'em the bird. Do we all go back through the various levels of the judicial system because Ottawa's diplomatic response didn't go far enough? Letter of concern? Regret? Condemnation? Maybe we should recall the ambassador? Send the JTF2 to spring him loose? Lob grenades from the Maid of the Mist with the maple leaf to the Maid of the Mist with the stars & stripes? What shall the robed foreign affairs ministers ordain?

            Point is: it is LUDICROUS to ask the judiciary to be tinkering with our foreign policy. The Charter cannot be enforced outside our borders, which is where this Canadian happens to be. It is for the elected government to balance its decisions against the sum total of the country's foreign policy interests, and for the electorate to encourage or to punish the governing party at the polls.

  7. The Constitution is a matter for Canadian voters, or at the very least those whom they elect.

    No. Constitutional amendments are a matter for Canadian voters and those whom they elect. Constitutional interpretation is very much a matter for the Supreme Court.

    Our constitution is an entity that reposes upon centuries of legal wisdom and aspires to universal application. It is not a juridical insole to be cut to fit majority bias in order to make the Jones feel comfortable, safe and validated.

  8. This is all about a fundraising and election issue. Harper's statement that you won't recognize Canada when he gets through with it appears to be precient – however, at this minority in time, he'll just happily take the points and divide Canadian institutions like so much boyesenberry pie than obey the law.

  9. A government that abandons its citizens is incapable of representing them.

    As for the court, my gut instinct is that they find the current government conduct reprehensible, but will rule according to what they believe the government's obligations are under law.

    Be aware all that should they interpret that the government does not have a responsibility to its citizens in this most extreme example of where it would seem the govt has an overwhelming responsbility (and I note the Canadian Bar Association, which represents the collective will of all lawyers in the country feels the govt does – to me that is an impt cue), then we all will be faced with the reality that our government owes none of us, that power rules for only the sake of power, and we shall be faced with a choice, do we change this, do we acquiesce, or do we leave?

  10. "There's a Canadian in trouble out there. Do something!!"

    All very nice, for Foreign Affairs, the government, and the voters to sort out. Not the courts, I sure hope. Although the courts so far have disagreed, I am holding out hope for reason on the part of the SCOC.

  11. Mr. Khadr is being tried in a military court as a soldier for killing a soldier. I gather as he was not in an official uniform, the Geneva Convention does not apply. Whether he truly falls under the category of "child soldier" would have to be determined by the court as once again, this is not a black and white case. The UN recognizes that some child soldiers have done actions under their own volition and should be tried and convicted – as a juvenile in juvenile court. Mr. Khadr would have to prove that he was coerced or forced into serving which I highly doubt as that would implicate his parents. The US military will have its day in court, Khadr will either be convicted or exonerated. Either way he will be returned to Canada to either serve his sentence or be released.

    • Wow, how convenient. A soldier for the loss of due process afforded to civilians, but not a soldier for protections afforded to military personnel. I completely agree this isn't a black and whilte case, and just because I'm defending his rights doesn't mean I don't worry he might be a terrorist. It just hasn't been proven.

      Why Harper has allowed us to come to this position is beyond me. We had a chance to negotiate with Khadr, 24-hour surveillance, listing people he could not communicate with, etc. Now, we may have to ask the Americans for him–and they'll be delighted to comply. Then, they can blame Canada for being soft on terrorists–a haven, if you will–while feeling righteous that their sham of a trial need not take place. We have no recourse but to try Khadr in civilian court, where he will almost certainly be acquitted since the evidence against him, at least as much as we in the public have seen, is so extremely flimsy. Then he'll be free to do whatever it is he likes–and if he wasn't a fully committed terrorist before, I can't see how the last seven and a half years would have made him feel more kindly towards the West.

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