As Kirk Makin explained over the weekend, the Supreme Court’s ruling last week on Omar Khadr is something less than a conclusion to the story. Today, Audrey Macklin, Diana Juricevic and Cheryl Milne lay out what it may all mean.
Does this mean that Prime Minister Stephen Harper has won the court’s permission to continue to do nothing? The answer is no … In declining to mandate the executive to take specific steps, the court indicated that the “prudent course at this point” was to give the executive the opportunity to formulate a remedy that fulfills its Charter obligations. However, if the government spurns the opportunity, we may arrive at a different point. A declaration, once issued by a court, is always open to enforcement. Should the violation of Mr. Khadr’s rights go unremedied, the Canadian government will continue to be in violation of the law. It will remain open for Mr. Khadr’s lawyers to return to court at a later date and renew a request for a remedy on the grounds that the circumstances animating the court’s deference have changed, and judicial deference is no longer warranted.