A veteran court-watcher on the Khadr issue: a fine balance

After the Supreme Court of Canada’s ruling last week in the Omar Khadr case, advocates for the Canadian being held by the U.S. at Guantanamo Bay said the government had little choice now but to ask for Khadr’s return to Canada.

They argued that even though the court hadn’t ordered Stephen Harper’s government to demand Khadr’s repatriation, the ruling left no other option, since it found his Charter rights were being violated. Now, the government is suggesting it will do no such thing.

Is Harper defying the top court? I asked Eugene Meehan, former national president of the Canadian Bar Association, former executive legal officer of the Supreme Court of Canada, and now chair of the law firm Lang Michener’s Supreme Court of Canada practice group in Ottawa.

This particular decision requires close reading, and Meehan knows his judicial nuances. “The judgment is a carefully calibrated balance between the power of the judiciary to decide legal issues, and the power of  the executive to engage or not engage government action,” he said. “It’s like they used  a carpenter’s leveling tool to balance it all out.”

Some other observers said that since the court found Khadr’s rights were violated, the judges must have meant the government should do something about it. But the possibility of doing nothing doesn’t seem to have been excluded.

“When you boil the decision down,” Meehan said, “it says Charter was breached, but you, the government, get to decide what to do, or what not to do, in these circumstances.”

Reading the ruling, this sentence seemed key to me: “Mr. Khadr is not under the control of the Canadian government; the likelihood that the proposed remedy [asking the U.S. to send him home] will be effective is unclear; and the impact on Canadian foreign relations of a repatriation request cannot be properly assessed by the court.”

In other words, the judges admitted they can’t be sure the U.S. would return Khadr if asked, and they aren’t in a position to say making the request wouldn’t hurt Canada’s interests abroad. So they didn’t order that or any other particular action, avoiding a direct clash between the court and the executive.

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