Khadr in the Canadian Supreme Court

Readers who are following the progress of Guantánamo-related cases through domestic courts around the country will be no doubt familiar with the case of Omar Khadr (left). Arrested and detained in Guantánamo Bay while he was a minor, Khadr is a Canadian citizen who had secured a lower court ruling directing the Canadian government to make representations for his release. The Government challenged that decision in the Supreme Court, largely on the basis that the exercise of diplomatic functions is an Executive function from which the courts ought to exclude themselves or, at least, in which they ought to minimise their role quite significantly.

In the Canadian Supreme Court’s decision in Prime Minister of Canada v Omar Khadr [2010] CSS 3 there is a clear recognition of the participatory role of the Canadian government in the unlawful detention with statements provided by Canadian officials being one of the bases for his continued detention. However, while Khadr was entitled to a remedy the Supreme Court did not grant the remedy sought, i.e. an order that Canada request his repatriation. The Court did not accept that the government was immune from constitutional scrutiny when it comes to deciding on perogative powers. Rather, the court asserted its jurisdiction to decide (1) whether a claimed perogative power exists, (2) if so whether the Charter of Rights or constitutional norms have been breached in the exercise of that power, and (3) to make specific orders. However, the Court could not make an order directing the government to request repatriation as to do so is to infringe too greatly on the executive power relating to foreign affairs. The Court held that the appropriate remedy in such a case is to declare a breach of rights and then leave it to the government to decide how to react to that breach.

The judgment seems to be a mixture of judicial muscularity (the claim that the conduct of foreign affairs is not an area within which the government can act without scrutiny) and deference (the claim that the government can not be directed to act in a certain way without the foreign affairs arena). While this might, at first, seem to indicate a contradictory viewpoint on the part of the Supreme Court, in my view it is in fact a good example of the kind of ‘nudging’ judgment we have seen in both the US and the UK superior courts in the ‘War on Terrorism’ (I have written about this here in the MLR and, forthcoming, also in the OJLS with an early, unproofed version here). What will happen if the Government does nothing or is not forced into doing something by parliament and ‘the people’? That is perhaps the lingering question from Khadr. The hope is that it will not fall to the Court to decide it and, instead, the government will take steps to try to have Khadr repatriated.