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.