The Supreme Court today handed down its decision on the Omar Khadr case, saying Khadr's rights were violated but the government doesn't have to ask for his return to Canada.
In its decision, published on its website, the Court summed up Khadr's argument:
Mr. Khadr argues that the government has breached his rights under s. 7 of the Charter, and that the appropriate remedy for this breach is an order that the government request the United States to return him to Canada.
Mr. Khadr does not suggest that the government is obliged to request the repatriation of all Canadian citizens held abroad in suspect circumstances. Rather, his contention is that the conduct of the government of Canada in connection with his detention by the U.S. military in Guantanamo Bay, and in particular Canada’s collaboration with the U.S. government in 2003 and 2004, violated his rights under the Charter, and requires as a remedy that the government now request his return to Canada.
Having explained that Khadr's treatment would have to meet the definition of a violation of "fundamental justice," the Court went on to say:
We conclude that Canadian conduct in connection with Mr. Khadr’s case did not conform to the principles of fundamental justice. That conduct may be briefly reviewed. The statements taken by CSIS and DFAIT were obtained through participation in a regime which was known at the time to have refused detainees the right to challenge the legality of detention by way of habeas corpus. It was also known that Mr. Khadr was 16 years old at the time and that he had not had access to counsel or to any adult who had his best interests in mind. As held by this Court in Khadr 2008, Canada’s participation in the illegal process in place at Guantanamo Bay clearly violated Canada’s binding international obligations (Khadr 2008, at paras. 23-25; Hamdan v. Rumsfeld). ...
This conduct establishes Canadian participation in state conduct that violates the principles of fundamental justice. Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.
We conclude that Mr. Khadr has established that Canada violated his rights under s. 7 of the Charter.
However, the Court also said that ordering the government to ask for Khadr's repatriation would not be a certain redress for the violation of Khadr's rights, and that the Court cannot tell the government how to conduct Canadian foreign policy. The Court concluded:
The prudent course at this point, respectful of the responsibilities of the executive and the courts, is for this Court to allow Mr. Khadr’s application for judicial review in part and to grant him a declaration advising the government of its opinion on the records before it which, in turn, will provide the legal framework for the executive to exercise its functions and to consider what actions to take in respect of Mr. Khadr, in conformity with the Charter.
The appeal is allowed in part. Mr. Khadr’s application for judicial review is allowed in part. This Court declares that through the conduct of Canadian officials in the course of interrogations in 2003-2004, as established on the evidence before us, Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice. Costs are awarded to Mr. Khadr.
Crawford Kilian is a contributing editor of The Tyee.
11
Login or register to post comments
Van Isle
2 years ago
Does this mean that Mr.
Does this mean that Mr. Khadr can now sue the Government of Canada?
G West
2 years ago
Sounds like a win for Khadr to me
Another notch on Joe Arvay's belt...now there's a fellow who should go into politics.
How about a move to draft him to take over from Carole James?
RMacArthur
2 years ago
This is a shameful day
This is a shameful day for Canada! Shame on Harper for his lack of a moral compass and shame on the supreme court for not standing up to the Harper-Con goons that have run this country into the ground with their inept governance and complete disregard for the human rights of one of our fellow citizens, regardless of whether you feel him to be guilty or innocent. Innocent before proven guilty no longer seems to mean anything on this country of ours and I for one am sickened by the racist fear mongering that has invaded our nation from the south. All other western nations demanded the repatriation of their citizens from the illegal detention center at Guantanamo Bay and yet Harper allows Omar to rot because of his fear of what Omar's return will reveal about Canada's continuing complicity in torture and war crimes."...the top court agreed Canadian officials violated Khadr's human rights, and that he continues to be threatened by the effect of those violations." and yet they do nothing to force Harper's hand when they DO have the power to do so... Our PM is connected to two separate cases of War Crimes and yet we still allow him to run our nation into the ground... What is wrong with us? Do we really only care for the issues that directly affect us or are we the champions of morality that we claim to be? When will enough be enough? When will we throw these WAR CRIMINALS from office? What are we waiting for... besides the next paycheck and the chance to purchase a new flat screen TV? Life has to mean more than blind pursuit of self interest, otherwise what's the point? If the rights of one of our citizens can be trampled upon at whim then all our rights are threatened. Innocent before proven guilty! Child soldier! Torture! War Crimes! All these seem to be issues that this Harper-Con regime feel to be acceptable, even though we know that this is far from the case... And yet we sit, and wait, and watch, like deer caught in the headlights, bystanders watching the wreck of a nation! Shame on us....
VivianLea Doubt
2 years ago
shame, indeed
Shame.
I am with you about Joe Arvay, G West.
Van Isle
2 years ago
Ditto to your comment
Ditto to your comment Vivian. I like to add that our present Minister of Defence should be up on charges too. If I was a member of the military I sure would have a problem if he was the minister responsible for me.
OilbertaRedTory
2 years ago
Now Mr Minority's continuing collaboration
... with US illegalities can leave no-one in doubt of his loyalties:
http://www.youtube.com/watch?v=qtd7o9x5uN0
So many more anti-Canadians are there in government?
Name
2 years ago
What is the penalty?
Maybe I'm missing it, but if there is no serious penalty for violating Khadr's rights, what disincentive is there for the federal government to not repeat such violations with impunity at the expense of other Canadian citizens in the future?
DPL
2 years ago
Should be interesting
Should be interesting hearing the harpo team and why they think they won. Harper has won nothing but is till playing to the law and order folks, mind you he does select only certain laws to defend.
Skywalker
2 years ago
Pathetic government performance
I watched a pathetic performance by some government spokesman on the CBC trying to justify leaving a Canadian accused of a crime (not found guilty) and left languishing in a prison for eight years and the Canadian government is more concerned about whether he has reason to sue them. That seems to be the only reason Harper won't due is duty. He's entitled to a fair trial and if the evidence is so sketchy and full of holes then in our system the court will decide if he is guilty. You don't get to decide verdicts of convenience.
Skywalker
2 years ago
Correction
Sorry it was not the CBC but rather CTV and on Power Play they had Dennis Ebney, Omar's lawyer debating with Harper spokesman Kory Teneycke. Canadians should be embarrassed by Teneycke's performance and his justification of the Harper government's inaction.
doggone
2 years ago
You brought this war to this kid
A child (supposedly) tossed a grenade which killed a medic.
What would you do in his shoes?
Why are the "allies" soldiers exempt from prosecution?
Would not be surprised if a few of them tossed grenades causing deadly affects here and there.
Bring this kid home and tone the feedback down or deal with the feedback