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Posts Tagged ‘Supreme Court of Canada’

Omar Khadr being interviewd by CSIS in 2003. Photo by: The Canadian Press

Friday was an extremely busy day and things did not all go Stephen Harper’s way. The Supreme Court, in a unanimous decision, held in part an appeal brought forth by the Prime Minister in regards to the ongoing detainment by the US of Canadian citizen Omar Khadr. Previously, a Federal Court had agreed with Mr. Khadr’s petition to the court that his rights guaranteed under Section 7 of the Charter of Rights and Freedoms had been violated, and ordered the government to begin to seek his repatriation. This ruling was upheld at the Federal Court of Appeals, leading to the appeal by the Government which was ruled upon on Friday. The Court held that the rights accorded to Mr. Khadr under the Charter have been violated but that directly ordering the government to seek his return to Canada was not appropriate, at this time. In sum, the Court decided to “grant Mr. Khadr a declaration that his Charter rights have been infringed, while
leaving the government a measure of discretion in deciding how best to respond.”

So, while the government does not have to immediately seek the return of Mr. Khadr, they are expected to respond in some manner to the Courts ruling that his Charter rights were and indeed continue to be violated. The Globe and Mail described the Courts ruling as a challenge to the Harper government saying that “a legal fist lies beneath [the ruling's] velvet glove.” In it’s ruling, the Court cited both the consistency of “the separation of powers and the well-grounded reluctance of courts to intervene in matters of foreign relations” but also noted that “courts are empowered to make orders ensuring that the government’s foreign affairs prerogative is exercised in accordance with the constitution.” All of this is to say that the matter of the ongoing detention of Omar Khadr is not over. I previously suggested that perhaps President Obama was looking for Prime Minister Harper to help him out in one small matter by seeking the return of Mr. Khadr. And why not? All other western nations, concerned with what we now know were entirely credible allegations of abuse and torture at Guantanamo sought, and received the return of any of their citizens being held in the black site. There is no reason that Canada should not, even at this late time, follow suit.

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I’m in the middle of getting ready to fly home so I don’t have much time to read and write, but this article’s headline “Top court spurns Olympic ski jumpers”, caught my eye for two reasons. First for it’s inaccuracy; as the article is discussing the possibility of the supreme court hearing a case about allowing female ski jumpers into the upcoming 2010 games, there are currently no female Olympic jumpers to spurn. My second qualm is with the use of  the word ‘spurn’ itself. That term has connotations of contempt built into it. The court is dealing with a legal matter not choosing a lover. I cannot speak to the courts decision with any real authority, but it seems like a rather simple matter; in neglecting to take the case up the court is affirming the lower courts decision that they do not have standing to enforce the Canadian Charter of Rights and Freedoms on the International Olympic Committee. Personally, I would love to see female ski jumpers in the Olympics and see no coherent reason for the IOC not to include them; the current field of competitive female ski jumpers is much more robust than other sports with female participation at the time of their introduction into the Olympics. My own personal feelings that the IOC have erred in their decision have no bearing on whether the Supreme Court of Canada has the authority to intervene in this matter. From my next to nothing understanding of our charter, I do not believe this is a matter where the court has any standing here. In this particular instance it seems the courts own view seems to have aligned with my own limited one. In no way is this a controversial ruling, nor does it say anything about gender equality in Canada. The real troubling issue is the largely legal vacuum that the IOC exists in, in any country in which it runs operations.

None of this is to say that I think this story should dissappear. On the contrary, one of the biggest themes I’ve hit upon in my short time writing in this here weblog is my belief that the world stage that hosting the Olympics will provide should be co-opted wherever possible, and this is just one more example of this; an opportunity for, as they say, a ‘teachable moment.’T

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Writing in the Jurisprudence column at Slate.com, Dahlia Lithwick has an excellent article up regarding the Obama administrations decision to try some Gitmo detainees in federal court, while continuing to try others before military tribunals and how that mess intersects with the plight of Canadian citizen Omar Khadr that we discussed below.  Her writing is superb and very enjoyable to read.  I’ll only excerpt briefly as you really should go read the whole thing, but it did prompt me to pose a question.

While discussing the ongoing case before the Supreme Court of Canada whose aim is to decide if the Canadian Government is to be compelled to advocate for Khadr’s release to Canadian authorities, Lithwick wonders:

If today’s oral arguments aren’t enough to convince the Canadian Supreme Court to intercede on Khadr’s behalf, maybe Holder’s announcement will be.

One can only hope that the facts alone are enough for the court to find in Omar’s favour; this is a man who was a 15 year old youth when initially captured.  He has languished in legal limbo for coming up on 8 years now.  We know that he has received serious mistreatment while in captivity and that that mistreatment may well qualify as torture.  I am not a lawyer and am not certain where the breach of this man’s charter rights occur.  Both the Federal Court of Appeals and Justice O’Reilly though have found this to be the case already.  It is now left to the Supreme Court to hopefully concur with their judgement.

In my earlier posting on this subject I was critical of Barack Obama for the two tiered system him and his attorney general have elected to go forward with; some cases moving to federal court, with others staying before the newly minted military tribunals.  Dhalia’s musing above has lead me to wonder if Obama/Holders motive in keeping Khadr before the tribunal is at least partially rooted in hoping to force Canada’s hand into taking Khadr into custody.  Are they intentionally signalling that our man will not receive a fair chance at justice, leaving the Canadian Supreme Court no option but to uphold the lower court decisions?  The US administration can no doubt use any help it can get in getting the detainees out of Gitmo.  Perhaps Obama is scratching his head wondering how much they’ve got to do to this guy before his government will step up to the plate for him.  Not enough so far anyways.  If the lower courts ruling is upheld it will be very interesting to see what the Harper Government’s response is.

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