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

'Its position remains unchanged'

by Aaron Wherry on Monday, August 24, 2009 10:16pm - 39 Comments

The government will appeal to the Supreme Court on the repatriation of Omar Khadr.

Tags: Afghanistan, federal court, Guantanamo, Omar Khadr, Stephen Harper, Supreme Court, terrorism, torture, War on Terror

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Dot

Did the Feds hire Eddie Greenspan?
Jenn

How much is this costing us?

catherine

Exactly. We are already paying to have Elections Canada defend itself against Harper on the in and out scheme.

It is one thing to pay for people suing the government, as that happens under any government. But Harper's fondness of pursuing legal battles with Canada's institutions (which he had before he became PM) is costing us extra.

Hanging Out

Add to this cost the future settlement Khadr will get after he gets back to Canada and sues the Government for illegally keeping him locked away in a foreign jail long after Canadian courts had ruled in his favour. That may end up being the biggest part of the bill to be paid.
http://intensedebate.com/people/avr avr

I hope you're not suggesting that litigation to determine the constitutionality of any particular course of action would ever be a waste of time or money. Or were you one of those cheering the cuts to funding the Court Challenges Program, hmmm?

Jenn

Absolutely not, avr. But this isn't any constitutional challenge. The Supreme Court of Canada has already ruled, with respect to Khadr, <b>that "The principles of international law and comity of nations, which normally require that Canadian officials operating abroad comply with local law and which might otherwise preclude application of the Charter to Canadian officials acting abroad, do not extend to participation in processes that violate Canada’s binding international human rights obligations. The process in place at Guantanamo Bay at the time Canadian officials interviewed K and passed on the fruits of the interviews to U.S. officials has been found by the U.S. Supreme Court, with the benefit of a full factual record, to violate U.S. domestic law and international human rights obligations to which Canada subscribes."

Continued . . .

Jenn

(Well, the good news is I had to cut the post in half so the whole thing isn't stupidly bolded)

In light of the international child-soldier provisions of which Canada is a signatory, not to mention the provisions against torture, of which more evidence seems to be coming to light on a daily basis, I just cannot see how the Supreme Court would find that the Federal Court of Appeal erred when upholding Justice O'Reilly's decision. Yes, I am not a Supreme Court judge, I get that. Yes, we cannot know for certain sure unless we ask, I get that too. But is the money almost sure to be expended as a result (however many millions that will eventually be remains to be seen) worth it for losing the negotiating strength we had a couple of months ago anyway, keeping an unnecessary thorn in Obama's side (far from supporting our U.S. allies, at this point we are hindering them) and continuing a massively unpopular policy? The trick was to NOT ASK. That way, you haven't set a precedent you'll have to live with for the next time.

http://intensedebate.com/people/SisyphusThis SisyphusThis

Oh, to live in a democracy , where they have actual elections , where governments ….

http://www.mcclatchydc.com/homepage/story/74228.h…

Oh, well …
http://intensedebate.com/people/SisyphusThis SisyphusThis

Oh, to live in a democracy , where they have actual elections , where governments ….

http://www.mcclatchydc.com/homepage/story/74228.h…

Oh, well …

http://intensedebate.com/people/Bartolomeo Bartolomeo

"Oh, to live in a democracy , where they have actual elections"

We live in democracy where we have annual elections.

Mike T.

Given the unfortunate amount of time he's already been held, the best thing would be to see the gov't ask for Khadr to be repatriated immediately and still continue the appeal.

http://intensedebate.com/people/Douglass Douglass

Well, it would certainly be better than what they are doing.

Tom A

Not super shocked to hear this, but this is really an "all-in" move on Harper's part. A quiet retreat on this issue would sting a little with the rank and file for a few weeks, but be survivable. Instead, it would appear the Cons are willing to bet it all on being vindicated by the Supremes… if they do bring it all the way to the floor of the SCoC and lose, it will make for a very big and very public spanking. It would be pretty much unprecedented for a national government in a Western democracy to stake its reputation on the unswerving rightness of its cause and then be told by the highest levels of its judiciary that they've been trampling on the Constitutional rights of a single citizen and be ordered to eat crow. That's election-losing big. I daresay they're already hard at work in the Little Shop of Tories on the ads blaming the elite librul activist judges.

Could any learned SCoC-watchers out there provide a guesstimates as to how long this story will now spend spinning around in the hopper until it comes back to life and starts generating lots of column-inches again?

I suppose the earliest opportunity for a trip back to the headlines would be if the SCoC declining to hear the appeal, but somehow I don't see that happening. What's the soonest that arguments could be heard? Am I correct in figuring there's no real way for this to bubble up prior to, say, November?
http://intensedebate.com/people/Stewart_Smith Stewart_Smith

Well one thing you can say about Stephen Harper is that he is not afraid to raise the ante for political motivation.

http://intensedebate.com/people/austinso austinso

In line with Tom's comment, I wouldn't be surprised if it is their way of killing two birds with one stone. By appealing, they are keeping their xenophobic christian base happy, and if they lose to the SCC, then they also can say that the SCC is stacked with a bunch of pinko soft-on-crime liberals and needs to be reformed.

This juvenile "raising the ante" for political motivation at any cost is something that I hope disappears very soon from our political landscape…

BCer in Mtl

Anyone offering odds on a CPC fundraising letter going out in the very near future in reference to this? Or would they at least wait untill they get slapped down by the SCC?

Blammo

Yeah, but who's fronting the ante?

http://intensedebate.com/people/Crit_Reasoning Crit_Reasoning

At the very least, the Supreme Court decision will provide finality. It could set a strong precedent that will still apply decades from now.

Mike T.

The principle of constitutional review of government action isn't that controversial, it's the novel nature of the remedy that's really at issue. It's incredibly rare that a citizen would be held in a country violating international rights, but still have access to a lawyer to demand the hearing and for a request for repatriation to likely be successful. I hope it never crops up again ever, let alone decades from now.

http://intensedebate.com/people/Jack_Mitchell Jack Mitchell

It boggles the mind that, while every other government worldwide has been trying to get its citizens out of Gitmo (often successfully), Stephen Harper's government has been moving heaven and earth to try and keep this guy in the twilight zone. They literally have no regard for Canadian citizenship as such. They absolutely dislike the Charter. And they don't have the guts to say so.
http://www.intensedebate.com/people/Jack_Mitchell Jack Mitchell

It boggles the mind that, while every other government worldwide has been trying to get its citizens out of Gitmo (often successfully), Stephen Harper's government has been moving heaven and earth to try and keep this guy in the twilight zone. They literally have no regard for Canadian citizenship as such. They actually dislike the Charter. And they don't have the guts to say so.

http://www.intensedebate.com/people/Scott_Tribe Scott_Tribe

Jack.. well said. It fits with my sentiment exactly of this disgrace of a government we have. Apparently they will hold to their Bush/Cheney positions on Guantanamo kicking and screaming to the last.

jarrid

What's Michael Ignatieff's position on the War on Terror?

If any Canadian leader can be said to be associated to the Bush administrations positions, it's got to be Iggy.

That was the real live Iggy, before he was packaged into the saccharine, milquetoast Iggy by the Liberal backroom braintrust. Who's stand on anything is qualified to death.

Personally, I liked the old Iggy, the one with intellectual cojones.

http://intensedebate.com/people/OntarioTown OntarioTown

I blieve the discussion is about Harper and Khadr…….moving on……

http://intensedebate.com/people/PolJunkie PolJunkie

"They literally have no regard for Canadian citizenship as such. They actually dislike the Charter. And they don't have the guts to say so."

I almost wish that the Libs would have the guts to make this an election issue.
scf

You'd think that the Supreme Court would know a thing or two about the Charter. I don't see how the Charter says that foreign affairs is dictated by the courts and not the government, and I'm wondering what the SCOC might way about that. I'd say the current government should be able to decide when they do and do not petition foreign governments.

http://intensedebate.com/people/craigola craigola

I think they're saying that it's perfectly acceptable for the government to conduct its own foreign affairs business, insofar as that business applies to policy issues. But government policy can't violate the Charter, and if it does, as we have seen, section 24 of the Charter sure seems to give a fair bit of leeway with regard to potential remedies.

From the Federal Court's judgment:

[40] Generally speaking, decisions about foreign affairs fall naturally and properly to the executive. Still, Canadian courts have determined that the executive’s prerogative in that area is subject to review under the Charter. As Justice Allen Linden has stated, “the exercise of Crown prerogative is beyond the scope of judicial review, except, of course, when a right guaranteed by the [Charter] is violated”: Copello v. Canada (Minister of Foreign Affairs), 2003 FCA 295, at para. 16, relying on Black v. Canada (Prime Minister) (2001), 54 O.R. (3d) 215 (C.A.).

[41] Justice Robert Barnes expressed the situation this way:

Decisions involving pure policy or political choices in the nature of Crown prerogatives are generally not amenable to judicial review because their subject matter is not suitable to judicial assessment. But where the subject matter of a decision directly affects the rights or legitimate expectations of an individual, a Court is both competent and qualified to review it. (Smith v. Canada (Attorney General), 2009 FC 228, at para. 26.)

Can't wait to see how the Supreme Court sees it. I hope they know a thing or two about the Charter.

Dee

A decision by the Harper government that should be an embarassment for all Canadians. The last country in the world, besides the U.S., to have one of our citizens incarcerated in the pseudo-legal confines of Gitmo. And a child solder at that.

Bravo Steve-o! You should be ashamed.
http://intensedebate.com/people/Stewart_Smith Stewart_Smith

Anybody who was upset when an innocent Canadian began a lawsuit against the Canadian government over her treatment in Kenya should be outraged at the Conservatives' handling of this. Harper's mishandling of this file has opened the government to a very large lawsuit… with the spoils going to the family of a known terrorist.

Some think Harper has been tough on this issue, he hasn't. By not biting the bullet and accepting that Khadr (with all his familial baggage) is a Canadian and therefore our problem. In addition to the probable lawsuit, we have also lost all opportunity to negotiate ongoing monitoring once he is back on Canadian soil.

The good news for Conservatives, none of this crap will hit the fan til after the next election. This is a clear example of Harper worrying about his short term benefit… in this case to the serious detriment to Canadian society.

Jenn

That is so true. Two points that make it vital to NOT do this! You know, I really didn't want an election this fall, in spite of being a Liberal and disliking the Harper mean, sneering culture. But I think this so epitomizes the Harper "politics first–what's good for the country second if we think of it at all" attitude that I've changed my mind.
scf

What a ridiculous thing to say. A lawsuit because the government did not support Khadr's right to lob grenades in Afghanistan (for the other side)? What a crock. If you don't let me shoot you, I'll take you to court back home!

Dave

The fun part will be when the defense, for the government, is asked to provide clear modern precedent for soldiers being held and tried for the mere act of killing, or attempting to kill, opposing soldiers during an active war/battle.
http://intensedebate.com/people/craigola craigola

If your portrayal of it was accurate, that would make for a pretty crazy lawsuit, but I'm not quite sure it's an accurate portrayal.

http://intensedebate.com/people/OntarioTown OntarioTown

You have to wonder if Harper's arrogance that he can't be told he's wrong is in play here.

I would think it would be cheaper to keep Khadr in jail here than all the legal wranglings.

scf

No, it wouldn't.

John W.

Sadly, the Harper people see this as a vote getter, not loser, and they will drag it out as long as possible, as they did with the woman trapped in Kenya.
I suppose if Khadr became the last inmate in Guantanamo, we might have to pick up the cost of running the place!!
Eva

Who are the lawyers who get to work on this, for the government? Department of Justice?
What if they are fundamentally against it?

http://intensedebate.com/people/MaggiesFarmboy MaggiesFarmboy

If they are "fundamentally against" it they will vote against the Tories next time there is an election. But in the meantime, they will do their job.

However, the real issue here is whether it should be the government, and not the courts, who should decide when to ask a foreign state to release a citizen charged with murder.

As a result, I suspect most DoJ lawyers would not have a problem in arguing this appeal, regardless of whether they think Khadr should be repatriated. Read the Federal Court of Appeal dissent by Justice Nadon. Honourable people can disagree. And honourable lawyers do their job, whatever their personal feelings.

http://intensedebate.com/people/craigola craigola

The Conservatives seem to have painted themselves into a corner on purpose.
It seems they would sooner accept a big slap from the SCoC (that's assuming they lose, but I'm no fortune teller/legal scholar), than explain to their base why they took the case of the son of the most hated family in Canada up to, but not including, the very top court in the country. Why?
If they end up winning the case, they win really big. And if they lose? Think of the money they'll be able to raise on the back of that decision.