The Commons: 'This is an exceptional case'

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

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.