Beyond The Commons

Aaron Wherry covers all the goings-on in and around Parliament Hill. Follow Aaron on Twitter: @aaronwherry

Categories: Beyond The Commons, Capital Read

Duelling absurdities

by Aaron Wherry on Saturday, April 25, 2009 1:11pm - 54 Comments

Rob Silver considers the federal court’s decision.

The distinction, in my opinion, is far from trivial, and has potentially troubling consequences going forward. While lawyers may argue that the Khadr case has a unique fact scenario (the fact that Canadian agents were part of interviews where torture was believed to be used is an important factor in this decision), the precedent is now set and it is easy to envision fact scenarios such as the one I set out above expanding this precedent. Courts could be forced to decide whether they are the body that now sets Canadian foreign policy whenever the rights of Canadians are impacted – a swath of potential issues from intervening in wars to not signing international treaties to, well, just about any international issue in which the rights of a single Canadian are affected.

Kate Heartfield tries to make sense of the government’s position.

If there’s any logic to the Conservative pull-my-string response of “Mr. Khadr faces serious crimes” (a big if) then the logic, given the court’s decision, is this: A person charged with a crime does not have human rights. If that’s not the logic, how is it relevant that Khadr “faces very serious charges”? What does that have to do with his rights and his treatment, which is the issue at hand?

Tags: Afghanistan, Guantanamo, human rights, Kate Heartfield, lawrence cannon, Omar Khadr, Rob Silver, terrorism, torture

More by Aaron Wherry

http://culturedecoded.wordpress.com/ pacer521

very interesting post — I just wrote one by the same topic — I think you’ll find it interesting.

http://politicsdecoded.com/2009/04/25/torture-its-effect-on-the-media-and-all-of-us/

edeast

Proper etiquette usually requires adding something to the discussion, rather than pimping your site. If it is semi-interesting; people can feel free to click on the link supplied by your name.

Wandering

Rob Silver kept repeating the term “executive branch” so much I had to stop reading and sent an email off to Jason Kenney requesting he send Mr. Silver one of those citizenship pamphlets.

Partisan non-partisan

“Executive branch”, “government”, “Cabinet”, “the PMO”, “Harper”: for anyone with a brain and without the compunction to pointlessly trash the author using the first, they’re generally seen as synonyms.

Wandering

Look up the word “synonym.”

I understand in what sense it’s being used, but it does suggest an unfamiliarity with our system of government. I’ve never once come across anyone using the term “executive branch” when discussing the Canadian government. “The executive” maybe, but “branch?” Never.

This people are paid to write and details like this make you wonder if they can even think.

Richard

If you’ve never come across the term “executive branch” I strongly suggest you add to your reading list books in which words outnumber pictures.

TJ Cook

I think his point is that it’s not a term commonly applied to the Canadian system of government, even though it’s used heavily in the US.

Sheesh.
Constitutional Arborist

Are you serious? In all the years I spent at university studying either law or political science every single textbook that talked about Canada’s constitution, or its system of government referred to the executive, legislative and judicial branches. I’m not going out on a “limb” to say that there were “branches” everywhere. And “living trees”, too!
http://www.jackmitchell.ca Jack Mitchell

Bagehot only uses “executive branch” when discussing the American constitution; in Westminster government the preferred term is just “the executive,” the term Bagehot uses elsewhere in his treatise.

I’m rather amazed at how rude Rob Silvers is to a fellow journalist, especially as Mr. Wherry was not passing judgment on his blog post.

But for my part I think Mr. Silvers is entirely right. Once judges start telling the Government what to do (as opposed to passing judgment on the constitutionality of Parliament’s laws), we are surely on a slippery slope to unchecked judicial power. Quis judicabit ipsos judices?
Mike T.

Jack, I don’t think Mr. Silver is arguing that the court’s can’t pass judgment on an action by the Crown (there’s an entire body of law about the limits of Crown prerogative, how government can bind itself by passing laws,signing treaties and making constitutional Charters which affect its actions, and the manner in which the courts can pass judgment on its actions). I think he’s limiting his criticism to the court telling the government what to do in matters of foreign affairs.

As far as I can tell its a fairly novel decision based on the facts and the remedy ordered, but I would hesitate to say its a big departure from existing principles. In that respect, I think Mr. Silver is overstating his case.
http://www.jackmitchell.ca Jack Mitchell

I definitely yield to your judgment, Mike; and I’m glad to hear you think it is not that radical a ruling.

Mike T.

It’s worth noting, Wandering, that the foremost text on our court system (no, it isn’t “The Court Party”) is called “The Third Branch of Government”. It’s possible that the term branches of government may be American, but it appears to have been clearly adopted into our own terminology. With little harm, if I may say so.

http://www.jackmitchell.ca Jack Mitchell

That’s true: “third branch” or “third arm” or “third whatever,” we’re talking about executive power, eh?

Mike T.

Generally unimpressed with Mr. Silver’s analysis. How far back is he going when he says it was “only a few years ago” that judicial review of foreign affairs matters would be unthinkable. ‘Cause Rafay and Burns, to pick one off the top of the head, was at the supreme court sometime in the early 2000s, the original trial would have been much earlier.

And considering that the court here hems and haws and makes a big deal of deference to policy in a case where the only remedy was a request a guy be returned, I would call it a ludicrous stretch to say this case paves the way for forcing the government to take military action against another country. Quite the opposite, I would say.
Rob Silver

” understand in what sense it’s being used, but it does suggest an unfamiliarity with our system of government. I’ve never once come across anyone using the term “executive branch” when discussing the Canadian government. “The executive” maybe, but “branch?” Never.

This people are paid to write and details like this make you wonder if they can even think.”

Ya, other than on official government documents (http://www.justice.gc.ca/eng/news-nouv/spe-disc/2005/doc_31432.html), descriptions of our system of government prduced by the parliament of Canada (http://www.parl.gc.ca/compendium/web-content/c_g_parliamentaryframework-e.htm#5), Supreme Court of Canada decisions (http://csc.lexum.umontreal.ca/en/1972/1972rcs0-917/1972rcs0-917.html) and Canadian prodcued political science texts (http://www.mapleleafweb.com/features/parliamentary-government-canada-basic-organization-and-practices), I couldn’t find a single reference to “executive branch” in a Canadian context either.

Of course, I only spent three minutes looking so who knows what I might have found if I had tried.

Thanks for the thoughtful feedback and you are right, given how much I get paid to write at that other place, an expectation that I can think is quite reasonable. Sorry to disappoint if you found such thought lacking in this, or any of my other posts.

RS

Rob Silver

Actually, a quick search of the Supreme Court database finds that the exact phrase “executive branch” has been used 86-times in decisions but then again, maybe I just made the term up (given my lack of brain and all).

Of course, as my good friend Wandering wrote “Rob Silver kept repeating the term “executive branch” so much I had to stop reading and sent an email off to Jason Kenney requesting he send Mr. Silver one of those citizenship pamphlets”.

True that Wandering. Just reread my post – I did use the term “executive branch” a wopping two times. If you can help connect me with Minister Kenney it would be most appreciated.

Wandering

You didn’t appreciate my snideness? And you call yourself a journalist…

*tsk*

I should have restricted my criticism to the laughable slippery slope fallacy you based that whole post on. I’m sure you would have loved that.

Rob Silver

Boy, you sure have my number.

Can you go back to kicking the crap out of that (clear) Liberal hack Wherry now instead of us serious jounalists?

Wandering

Would that you lavished the commenters over at your own blog with as much attention.

sf

It’s interesting to see how much arrogance can be packed into one person. Silvers just annihilated your point with facts and references, and rather than concede his rebuttal, your arrogance leapt into the stratosphere.

Wandering

Silvers just annihilated your point with facts and references, and rather than concede his rebuttal, your arrogance leapt into the stratosphere.

Thank you.

You’re one to talk, You’re the most bafflingly conceited dolt around here. Everything you say is asserted with a confidence only the truly deluded have.
Critical Reasoning

I agree, Silver was very effective at demolishing Wandering’s attempt at criticism.

Can you go back to kicking the crap out of that (clear) Liberal hack Wherry now instead of us serious jounalists?

Wow. Trippy. Is Silver being facetious, or this an authentic zing? Could it be that Silver considers himself to be a serious Liberal journalist, but he sees Wherry as a mere hack? C’mon, Wherry, fight back!
Critical Reasoning

Wandering, are you capable of substance , or just snark? So far, most of your comments have been lazy ad hominem attacks.

Brian

Is this blog registered at http://www.liblogs.ca? May as well.
Mr. Wherry’s unending anti-Conservative blogs are tiresome. At least others at macleans have some diversity of critique and opinion, Aaron comes off as just a bitter Liberal hack. Zero objectivity, zero imagination, of zero use.

sf

He seems to like it that way, you are not the first to notice.

Brian

He is not a serious journalist or commentator, just a serious Liberal hack. No credibility.

Mark

I’m with you Brian. Only the unserious hacks have credibility.

peimac13

Keep waiting to find his blogs listed under bad comedy.

John W

Did Cannon misspeak in his answer in the house Friday connecting Khadr to recent military deaths, or did he say it on purpose, and was his comment planned and orchestrated by the PMO?

Richard

Nope. In English he said Khadr made bombs that killed Canadian soldiers, and then in French he made an extra special effort to specifically link him to the death of a particular soldier from Quebec who died tragically just last week.

He didn’t misspeak. He’s just a scumbag.

avr

The truth – that Khadr is a very bad person who’s done very bad things, who’s supported and associated other very bad people who’ve done very bad things – kind of hurts your little crusade, doesn’t it.

Mark

The truth – most very bad people who do very bad things and hang around with very bad people at least get to have their very bad acts heard by a judge before being locked up with other very bad people.

If Khadr has done very bad things, all of us would very much like to see him atone for those very bad things. But until those very bad things with very bad people are presented in a very real court with very real evidence, then our government is no f***ing better than him.

But avr, since you’re such a very smart person, what do you think of Lawrence Cannon’s behaviour of this week?

peimac13

Any trial for Khadr in Canada ( or anywhere) will likely create a gong show of ineptness, bullying and mountain of appeals.

TJ Cook

So – I think you’re saying – for that reason, we should leave him in limbo in a system of “justice” that the US itself has declared a failure. I mean, you can’t have a dramatic trial, right?

Makes sense to me. If you want to make an omelet, you’re going to have to torture a few 15-year-olds and deny them access to counsel for a few years.
Lord Kitchener’s Own

I have no doubt that a trial of Omar Khadr would end up looking like a “a gong show of ineptness, bullying and mountain of appeals”. I also have extremely little doubt that said trial could never convict him of anything, and almost no doubt whatsoever that even a military tribunal that somehow, miraculously, managed to convict him of something over seven years later, would never sentence him to anything more than time served, given the circumstances (i.e. a brainwashed 15 year old accused of killing a soldier in a firefight, absent eye witnesses, who was shot and almost killed, and then held without trial in an off-shore prison of dubious legality for almost a decade awaiting trial, and allegedly abused while in custody).

I understand why the Canadian government doesn’t want to ask for his return. It’s because they’d immediately have to let him go free. It’s pretty similar to the case of Abousfian Abdelrazik (accept that Abousfian Abdelrazik’s case is even stranger, as he’s not actually even ACCUSED of anything tangible, and both the RCMP and CSIS have publicly cleared him of any wrong doing). In both cases though, I firmly believe that the Government of Canada is refusing to repatriate these men (or, in the case of Khadr, refusing to even ASK that he be repatriated) for no other reason that that they know that the instant either one of them touches Canadian soil someone will file a multi-million dollar lawsuit against the feds that the government would almost certainly lose.

Frankly, though they can’t admit it, I’m quite certain the Americans would LOVE us to ask for Khadr back, and they’d throw him on the next flight to Pearson if they could, because I think the Americans know that THEY can’t convict him of anything either, and it’s better for them politically to say “we sent him back to Canada at their request and THEY let him go”, then to let him go themselves. Ironically, they need to keep Khadr in a perpetual state of “facing serious criminal charges” because it becomes clearer all the time that they won’t be able to actually convict him of any serious criminal charges in anything that resembles a fair trial that respects due process (I mean, I’m quite sure they can’t get a conviction in front of a military tribunal even). That fact is, ironically, a credit to the American sense of justice (i.e. even an American officer in charge of a military tribunal designed to make it easier to convict people won’t just convict someone without some degree of fairness, and evidence, and due process) However, it also means that Khadr’s in the Kafkaesque position of being continuously held in custody because the authorities CAN’T convict him of a crime.

avr

Which is why it’s a shame he was captured alive in the first place, yes.

Wandering

Which is why it’s a shame he was captured alive in the first place, yes.

Fill with blood lust on a Sunday morning? *tsk*
Lord Kitchener’s Own

I don’t disagree that in many ways it probably would have been better if Khadr had been killed in that firefight.

That said, the fact that one was going to, and would have been justified to, kill a combatant in a firefight is no excuse to then mistreat said person afterwords when they survive (I mean “mistreat” in a due process / fundamental rights way… let’s leave aside the allegations of abuse for now… though those are important).

However soothing it may feel, “you know, we coulda just killed you” is not a “get out of the rule of law free” card. Fundamental rights don’t mean anything if they only protect schoolchildren and kittens. We should measure ourselves by how we treat the bad guys, not by how we treat the saints.

peimac13

I haven’t heard any arguments of his innocence but many good arguments that traditional charges and prosecution likely won’t work or at best he’ll be sentenced to time served.
It’s still disturbing that we would be letting him go in a state of mind that he “hates” his country enough to decide to act against it and it’s people.
*Yes his crimes were committed in Afghanistan against American Soldiers; our Allies on the mission.

Jenn

I don’t think anyone argues against this point. I believe the vast majority of us finds the whole thing disturbing, but we were handed a gift by Khadr’s lawyers a few weeks ago, and didn’t take them up on it!

In exchange for repatriation (which the rule of law would require be done regardless) Khadr is willing to VOLUNTARILY submit to restrictions on his movements, psychological care, and other safety precautions for society. Since the wisdom holds that he wouldn’t be convicted anyway, yet we are none too sure of his innocence, we should have jumped at this chance to solve the problem.

Instead, we fall back on the same old, tired excuse that “he is facing serious charges.” Ethically wrong, and equally to the point, stupid.

peimac13

Very valid points. Makes one wonder why the Government didn’t jump all over it and call the idea their own. I’m about finished thinking any of them make any decisions without poll counting these days.

Lord Kitchener’s Own

I haven’t heard any arguments of his innocence…

This isn’t an argument in the sense that you mean (and I get what you mean, though, the lack of credible eye witness testimony, and the presence at the scene of a dead fighter whom many believe is far more likely to have been the person who threw the grenade, and whom at least one soldier identified in his after action report as having been the grenade thrower, are arguments of his possible innocence… it’s also at least a little troubling that they’re accusing the only person who survived of all of this…) but I’d also just point out that Khadr doesn’t actually need to “argue” his innocence. He’s presumed innocent until the state proves his guilt. And, surely, there must be a point at which the injustice of holding someone in prison who’s never been convicted of anything outweighs the pragmatism of not letting a potentially guilty person go free. One can argue whether or not seven years of jail prior to conviction (Hell, prior to TRIAL) hits that point, but there’s surely a point to be hit.

At some point, the damage we do to ourselves by keeping Khadr locked up sans conviction far outweighs any damage he could ever do to us.

peimac13

That might hold if they want him for murder but he’s more likely an unlawful combatant( strange term but it exists so I’m using it). Would he not fall more under laws pertaining to prisoners of war if you can stick down the ideas behind the anti-terrorism acts. Or is he outright as they’d like to call him a terrorist and unworthy of protection under the Charter?
There’s just not anyway to serve justice on this one without breaking our own code of morals and ethics for or against innocence.

Lord Kitchener’s Own

Well, first off, “unlawful combatant” is just a term the Bush administration’s lawyers came up with, so while, sure, the term exists, it has no real legal basis of any importance, certainly not in Canada. As for the prisoner of war thing, sure, you can in theory hold a prisoner of war until the end of hostilities, but the whole point of the “unlawful combatant” pretzeling was to make the claim that said combatants were NOT prisoners of war, and therefore were not subject to the Geneva Conventions. To me, it’s cherry-picking to a horrendous and morally dubious degree to say “he’s not covered by the Geneva Conventions because he’s not a POW, but we can hold him indefinitely without charge or trial because he’s a POW”.

As for “is he outright as they’d like to call him a terrorist and unworthy of protection under the Charter” that is perhaps your most worrying statement. “Worthiness” has nothing to do with Charter applicability. Canadian citizens have rights whether they’re guilty or innocent, good or evil, whether they’re “worthy” of protection or not. Some of those rights can be curtailed within “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”, it’s true, under certain circumstances. However, certain fundamental rights such as the right “not to be arbitrarily detained or imprisoned” (Section 9), or “to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful (Section 10, Subsection c), or the rights “to be tried within a reasonable time” and “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal” (Section 11, subsections b and d) we mess with at our own peril.

If Khadr is deemed “unworthy” of the protections of the Charter of Rights and Freedoms then that determination alone makes you and I less protected.
madeyoulook

“Worthiness” has nothing to do with Charter applicability.

Absolutely true. The Charter means nothing unless these rights and freedoms are equally applicable to Canada’s least deserving.

I trust I am not the only one troubled with the concept that now, apparently, “geography” has nothing to do with Charter applicability, either.
peimac13

I glad for the debate and does bring one to the think when ideas get batted around. Assuming Mr Khadr gets repatriated, is he treated as a POW or as a criminal?
Lord Kitchener’s Own

I trust I am not the only one troubled with the concept that now, apparently, “geography” has nothing to do with Charter applicability, either

No, and I should say that my getting into the Charter had more to do with the implications of peimac’s question (“is he outright as they’d like to call him a terrorist and unworthy of protection under the Charter”) than with the separate question of the geographical limits of the Charter, so to a certain extent, point taken.

However, whatever the limits of the applicability of the Charter beyond our borders, I’d say it’s still incumbent upon our government to at least COMPLAIN if one of our citizens is treated in a way that violates our Charter while outside our borders. Not in a “you must treat our citizens according to our Charter” sense, but in a “we believe all free people deserve protections similar to those embodied in our Charter” sense. I’m quite worried by our current government”s, imho, rather blase (if not outright hostile) treatment of Canadian citizens once they leave our soil. I don’t feel anywhere near as confident in the lengths to which my government would assist me while I’m overseas than I would have 10 years ago, and in fact I’ve seen a fair amount of evidence recently that it’s not inconceivable that my government could actually be a greater hindrance to my well being abroad than a help. Whatever one thinks of Khadr (or Abdelrazik for that matter) I don’t see how any Canadian can’t be at least somewhat put off by the fact that every single other Western national held at Gitmo has been repatriated to their nation of citizenship, including people accused of crimes no less serious than Omar Khadr, while our government refuses to even ask the question. Meanwhile in the case of Abdelrazik, the government of Canada is the one and only thing preventing him from returning to Canada, the RCMP and CSIS having publicly cleared him of any wrongdoing, and the Sudanese having released him and even offered to fly him home on a government plane!

I don’t necessarily expect my government to do more for me when I’m in trouble abroad than any other country would do for its citizens. However, I see considerable evidence of late that my government has been consistently doing LESS for Canadian citizens abroad than almost any other democratic government on the planet would do, or has done, and that worries me. There’s a lot of talk (just talk, but talk) of dual citizenship lately, and a move to get rid of it as some symptom of a citizen’s presumably less passionate connection to Canada However, there’s not enough talk, imho, of Canada’s seemingly less passionate commitment of late to her citizens while abroad. For now, I remain comforted by the fact that I also hold a British passport. If I get in trouble abroad (say, get sent to Gitmo) I’m quite confident that at least the Brits will come get me, or at the very least ask for me to be turned over to them (while, if I were actually in Gitmo, I’m not sure it would help me one bit to mention that I’m a Canadian, in fact, it might very well make my situation worse).

madeyoulook

LKO has offered several very thoughtful posts, in many different comment nests. I am taking the liberty of breaking free of the nearly dead-ended reply branches to offer the following.

For the first time ever I have dug up the Geneva Convention (unless someone can correct me, the 12 Aug 1949 text as it appears on the International Committee of the Red Cross website is the regulation in force). Sorry, I never learned how to a-ref, if that’s even what you’re s’posed to do in HTML. To avoid disappearance I will try to offer the link immediately following this reply.

Regarding LKO’s comment that “unlawful combatant” was just cooked up by Bush & friends, well, not exactly. Geneva tells us in Articles 4 and 5 tell us the “to whom” and the “when” that these conventions must apply, so it stands to reason that one may interpret that individuals who fail to abide by the rules also abdicate the full protection of Geneva.

Then there is Article 3. This compels signatory countries the minimum standards of treatment that must be provided to “persons taking no active part in the hostilities.” The short list is of ill-treatment that must be avoided, rather than the various measures of respect, comfort and even payment for work that the rest of the text affords “legitimate” prisoners of war.

Alas, there was then the Bush administration commitment that (paraphrased) “these illegal combatants don’t deserve Geneva, but we’ll give it to them anyways.” Even the very limited thou-shalt-nots in Article 3 seem to have been dumped for (at least) certain detainees. Which makes the “unlawful combatant” term the last shield for the Bush administration: notwithstanding the public posture, Geneva actually did NOT apply after all. It has been repeatedly and legitimately argued that this should not matter. Freedom-loving, rule-of-law-respecting countries do not torture, full stop. All the military-legalistic notions of Gitmo NOT being on US territory, and the hair splitting of whether the simulated-but-not-as-dangerous-as-other-waterboarding-techniques is really torture, and so on, will never appease that argument. And it is a good and sound argument. The USA is (and must!) be better than this.

Real world though, ONLY the USA will have the ability to sort this out properly. If it wants to. No other country in the world will be able to defeat the USA militarily to impose its version of victors’ justice.

And none of that fixes the (what I call) absurdity of a judge safe and sound inside Canada using the Charter to tell the feds how to behave outside our own borders. Even if he is correct that there is little evidence our foreign relations would be harmed by Ottawa being forced to adopt a certain international attitude. It’s just not his call. Let Parliament as elected by voters decide.

Here’s a tip I offer to my fellow Canadian citizens. You want the Charter to protect you? Don’t leave Canada to pick a fight with another country’s military. If a life insurance policy self-voids by this behaviour of a policy holder (and self-void it should!), it is absurd to think the Charter should come and save your international-mercenary behind.

Here’s a tip I offer to the parents of my fellow Canadian citizens who are still children. You want the Charter to protect your child? Don’t send him or her outside Canada to pick a fight with another country’s military. If a life insurance policy self-voids by this behaviour of a policy holder (and self-void it should!), it is absurd to think the Charter should come and save your child’s international-mercenary behind. I’d like to think the Canadian justice system has a bone to pick with your child-endangerment parenting behaviour, more than it should feel compelled to open up a management office at DFAIT.

madeyoulook

If the blog lords will permit the link:

http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e63bb/6fef854a3517b75ac125641e004a9e68
Lord Kitchener’s Own

Good points by myl for the most part. On the “unlawful combatant” thing, I do get that if there’s such a thing as a lawful combatant under Geneva (and there is) there must theoretically be “unlawful” combatants, however, I think clearly the U.S. administration was, in practical terms, using this terminology to mean “for these guys, as determined by us, there are, essentially, no rules”. They couldn’t come right out and say that, but to me, that was the clear intent (I’m not talking torture here mind you, just the elimination of due process, habeus corpus and the rule of law). More important, as far as the Conventions go, is this: “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal“. Well, the Supreme Court of the United States is a competent tribunal, surely, and they have declared that prisoners at Gitmo are entitled to access to the U.S. Justice system, and that the Combatant Status Review Tribunals set up at Guantanamo were inadequate (Case and Ruling) which pretty much throws most of the “unlawful combatant” rationale out the window. The Supreme Court of the United States has determined that A) it has yet to be determined that these prisoners are NOT POWs covered by the Conventions, and B) in any case they are entitled to access to the Justice System of the United States of America, as prisoners held by the United States of America.

As for this: Here’s a tip I offer to my fellow Canadian citizens. You want the Charter to protect you? Don’t leave Canada to pick a fight with another country’s military. I would amend that advice slightly to “You want the Charter to protect you? Don’t leave Canada.” Plenty of people have been left in limbo, or been otherwise abandoned by our government overseas who did nothing like “pick a fight with another country’s military”. As far as I can tell, based on my government’s recent actions, the second you leave Canadian airspace you’re on your own. Maybe the government will help you, maybe they’ll actively thwart your attempts to get help. It’s pretty much a crap shoot.

Whether it’s appropriate for a Canadian judge to rule in this way on the propriety of the government’s inexcusable inaction, and unwillingness to protect, and in some cases pretty open belligerence towards, the rights of it’s own citizens is a much more complicated issue that I don’t feel competent to judge, and which I haven’t thought through sufficiently. That a judge felt compelled to, essentially, say “the government ought to look out for it’s citizens interests and make at least some pro forma attempt to protect their rights when being detained for years without trial overseas” is highly embarrassing to me as a Canadian. Keep in mind, the judge isn’t arguing the government must repatriate Khadr, or send troops to go get him, merely that the government is obliged to ask the question. To make the request. That our government would feel that seven years incarceration in an off shore prison without trial, let alone conviction, is insufficient grounds to even request the repatriation of one of our citizens, in the face of every other democratic nation on the planet not only making such requests, but actually effecting the repatriation of all of their citizens, makes me throw up a bit in my mouth. And guarantees that I’ll always take my British passport with me whenever I leave my home and native land.

madeyoulook

There may be but a hair or two left to split between our positions, LKO.

You are ashamed that it took a judge to order Ottawa to engage in court-defined acceptable moral international-diplomacy behaviour. Fair enough.

But if the only function left of a federal government will be to tax-and-spend as much as the judges deem necessary to carry out their (the judges’) policy decisions, that is where I get off and look for another country. What else is there for voters to do, besides decide which government shall appoint the judges who will then decide everything?

You don’t like a foreign policy posture of the federal government? To the point of gagging on gastric juices? Fine. Speak up. Call your MP. Don’t vote for them next time. Enough people agree with you and you will get your wish. But geez: the Charter of Rights and Freedoms? Applying to someone who is not presently inside Canada? Because some judge didn’t like what CSIS did — outside our borders? Now I’m bringing up some supper.

Lord Kitchener’s Own

As an aside, does anyone know exactly where in the Constitution the Charter is limited to “only protect those present in Canada” or “only apply to the government in terms of decisions effecting Canadians located within the physical boundaries of Canada” or some such, or case law from which such an interpretation of our Constitution arises? I mean, I get that the Charter itself can’t protect us outside of Canada, but I’m less certain about why (how?) it can be interpreted to have no effect on the Government of Canada’s response to scenarios happening outside of Canada that threaten the rights and freedoms of Canadian citizens. It does seem somewhat logical that such a provision exists, but I don’t know enough about constitutional law to know where, or how it’s been applied in the past. I admit that it’s entirely possible that the decision about which Canadians get help, which Canadians get apathy, and which Canadians get active resistance from the Government of Canada vis a vis assistance when they find themselves in trouble abroad is entirely at the whim of the government of the day, and that they are under no obligation to treat Canadian citizens equally, the moment said Canadian citizens travel beyond our borders. However, I’d like to read a more detailed explanation of it from a legal point of view.

All I can find about the application of the Charter is this:

32. (1)This Charter applies

a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament

So, in what manner does the government’s decision to request (or not) the repatriation of a Canadian citizen from a foreign government fall outside of “all matters within the authority of Parliament”, and/or where else do we get the notion that the Government of Canada is under no obligation to even attempt to safeguard the rights and freedoms of Canadians unless they’re physically located in Canada at the time that said rights and freedoms are threatened?

As for “Fine. Speak up. Call your MP. Don’t vote for them next time.” point taken. Of course, I’m like the majority of Canadians. I didn’t vote for them LAST time, lol.
Lord Kitchener’s Own

I do kinda like the “CSIS should be allowed to do whatever they please as long as it’s done outside of Canada” implication of that second to last sentence though. It’s very Jack Bauer. And it gives us a great way to avoid all the complications of Charter rights. Just ship the suspects off shore! I mean, no nasty judge can interfere with agents of the state so long as said agents do their business outside of our physical territory. I think perhaps it’s a bridge to far to say that not only is the government under no obligation whatsoever to perform even the most mundane task to protect our rights and freedoms once we’re outside of the country, but their agents aren’t subject to the constitution as long as they’re outside of our country either.

Sure, it didn’t work for the Americans, and their Supreme Court ruled it to be grossly unconstitutional, and a violation of fundamental rights that apply even to non-citizens, but I bet it’ll work out better for us. Maybe we’re not asking to repatriate Khadr from Gitmo because we’re negotiating for CSIS to take it over once Obama closes it down.

The main lesson I guess is, if you’re Canadian, STAY IN CANADA. Or, alternatively, get a second passport that matters.

Liz

LKO, you win the thread IMHO.

I laughed at your last sentence as it evoked a scene of lonely Scots reaching out to Canadians. What a way to get a passport that matters! Perhaps even meet that Susan or Sean Boyle of fantasy, and parlaying it into a bona fide relationship complete with a passport to fairer climes.

I wonder if the British Isles will use pics of Canadian vistas in commercials to get us to come there instead of stay here seeking Avalon.