Khadr case shows "The government must act when the land's highest court declares it is breaking the law"

Audrey Macklin, Diana Juricevic and Cheryl Milne
A chance to do the right thing

The government must act when the land's highest court declares it is breaking the law in the Omar Khadr case

Audrey Macklin, Diana Juricevic and Cheryl Milne

From Tuesday's Globe and Mail
Published on Monday, Feb. 01, 2010

Click here to read original article in the Globe and Mail

As you read this, the Canadian government is violating the rights of Omar Khadr.

In a ruling last Friday, the Supreme Court of Canada declared unanimously that the Canadian government is violating Mr. Khadr's right to life, liberty and security under the Charter of Rights and Freedoms. The court denounced the use of torture in the form of sleep deprivation by U.S. authorities against Mr. Khadr when he was 15 years old in order to soften him up for interrogations conducted by Canadian authorities. It found that the rights violation continues because information obtained during illegal interrogations in 2003 and 2004 can still be used against Mr. Khadr in U.S. proceedings.

The court declared unequivocally that Canada breached “the most basic Canadian standards about the treatment of detained youth suspects” and that those breaches remain ongoing until the government provides a remedy. The court acknowledged that a request for repatriation would be a logical remedy that could vindicate Mr. Khadr's rights, but declined to order the government to make the request.

Does this mean that Prime Minister Stephen Harper has won the court's permission to continue to do nothing? The answer is no.

The court declined to exercise its authority to grant the remedy out of concern about the incomplete record before it, and the limits of the judiciary's institutional competence to direct the executive in foreign relations. Reasonable people may disagree about the wisdom of this deference, but it should not be misunderstood as permission for the Prime Minister to ignore the court's declaration. The court is giving Mr. Harper a chance to do the right thing, not absolving him from accountability.

When the highest court in the land advises the government that the government is breaking the law, and affirms that a request for repatriation would be an appropriate remedy for that breach, a government has two choices: A government that operates according to the rule of law will undertake to remedy the wrong because it understands that the government is not above the law. A government that operates according to the rule of men will calculate that if no votes will be gained by obeying the law, and some votes might even be lost, then the law deserves no respect unless and until backed up by the force of a court order. There are people who think it is okay to break the law if they can get away with it. We should be deeply worried if our government guided itself according to the same moral logic.

The Canadian government must issue a remedy when the highest court in the land rules it has violated someone's rights. The court states its expectation that the declaration will provide a “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 court has effectively ruled that doing nothing does not conform to the Charter: The government has a legal obligation to act. What if it fails to act, or acts in bad faith?

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.

Respect for the rule of law would lead the Prime Minister to do what Britain, Australia, France, Germany, Belgium and other states have already successfully done. The Prime Minister should request the United States to repatriate Mr. Khadr under conditions that reassure the U.S. President and the Canadian public that Mr. Khadr will be treated justly in Canada. Indeed, proposals about how to create those conditions have already been submitted by counsel for Mr. Khadr and others before a parliamentary subcommittee.

The integrity of our parliamentary democracy depends on all state institutions – Parliament, executive and judiciary – acting within and according to the law. Regardless of one's views about Mr. Khadr, all Canadians have a deep interest in a government that abides by the rule of law. That message must be communicated to the Prime Minister, because in our parliamentary system, neither he nor his government can flout the law.

Audrey Macklin is a law professor at the University of Toronto and co-counsel for the intervenors. Diana Juricevic is acting director of the International Human Rights Program at the University of Toronto's Faculty of Law. Cheryl Milne is executive director of the David Asper Centre for Constitutional Rights at the University of Toronto's Faculty of Law. The program and centre joined forces with Human Rights Watch to intervene in the appeal before the Supreme Court of Canada.