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

To the highest court it goes

by Aaron Wherry on Friday, September 4, 2009 10:59am - 34 Comments

The Supreme Court will hear the government’s appeal of the Federal Court’s ruling on Omar Khadr. The official statement:

Prime Minister of Canada et al. v. Omar Ahmed Khadr (F.C.) (Civil) (By Leave) (33289)

(The application for leave to appeal and the motion to stay the order of the Federal Court of Appeal and to expedite the hearing of the appeal are granted without costs. The appeal is to be heard on November 13, 2009, and the schedule for serving and filing the material and any application for leave to intervene shall be set by the Registrar.)

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

More by Aaron Wherry

http://intensedebate.com/people/JulesAime JulesAime

I'm not sure I see why this is such a dramatic story. No politician with more brain power than an amoeba would willingly repatriate a terrorist, never mind launch a legal battle to have a terrorist repatriated. So Harper pushes it to the highest court. Either the Supremes blink saving him a lot of trouble or they uphold the Federal Court ruling making it beyond clear that he is being forced to do this and has no choice. Either way Harper wins.

http://intensedebate.com/people/SeanStok SeanStok

I must have missed the trail where it was reasonably established that Khadr was a "terrorist". Could you point me to the evidence?
http://www.intensedebate.com/people/SeanStok SeanStok

I must have missed the trial where it was established that Khadr is a "terrorist". Could you point me to the evidence?

http://intensedebate.com/people/Nich Nich

You don't have the security clearance to see any of the evidence; same as Khadr.

Just take Jules' word for it.
http://intensedebate.com/people/JulesAime JulesAime

There is some doubt as to whether he threw the grenade but none as to his status as one of the terrorist forces in Afghanistan. Ending up in middle of a four-hour fight is not typical tourist behaviour.
http://intensedebate.com/people/Scott_Tribe Scott_Tribe

Conservatives and their supporters have a habit of forgetting the "innocent til proven guilty" part. People might recall they were taking the Liberal government to task for "aiding a terrorist" when they were trying to help get Maher Arar home from a torture chamber in Syria… I believe you'll find Stock Day, Ablonzcky, and Harper openly calling Arar that in the House, where they were safe from slander/libel lawsuits.
http://intensedebate.com/people/JulesAime JulesAime

PS: September 7, 2004, a tribunal concluded that Khadr was indeed a combatant.

There is a copy of the decision here:

http://en.wikisource.org/wiki/Review_of_Combatant…

Jenn

I agree it is an optics win for Harper either way. But at what price? When the Supreme Court said leave was granted "without costs" they didn't mean it isn't costing us anything. Add to that every indication is that the U.S. will be grateful to be asked the question, and the little thing about upholding the rule of law, international obligations as signatories, and one other important point; if you do it voluntarily you can negotiate the terms, both with the U.S., and Khadr's lawyers. I'm not so sure you have such wiggle room if you are ordered to do so.
http://intensedebate.com/people/sea_n_mountains sea_n_mountains

as Sean rightly points out the tradition is an assumption of innocence until proven guilty Jules. Not to mention that every other ruling head of a western state has already repatriated their citizens from Guantanamo Bay.

http://intensedebate.com/people/JulesAime JulesAime

Two points:

1. Even Khadr's most determined defenders don't argue that he wasn't involved in terrorist activities. There argument is rather that he was an impressionable teen under the influence of irresponsible adults and that it is not to late to rehabilitate him.

2. The tradition is that a person is innocent before guilty when before the court. If 20 people see me step out on the street and throw a brick through my neighbour's window and I plead not guilty, then the courts will act on the assumption that I am innocent until proven otherwise. Private citizens are under no such obligation. The twenty people who saw me throw the brick, for example, are perfectly within their rights to assume their own eyes did not lie to them.
http://www.intensedebate.com/people/JulesAime JulesAime

Two points:

1. Even Khadr's most determined defenders don't argue that he wasn't involved in terrorist activities. Their argument is rather that he was an impressionable teen under the influence of irresponsible adults and that it is not to late to rehabilitate him.

2. The tradition is that a person is innocent before guilty when before the court. If 20 people see me step out on the street and throw a brick through my neighbour's window and I plead not guilty, then the courts will act on the assumption that I am innocent until proven otherwise. Private citizens are under no such obligation. The twenty people who saw me throw the brick, for example, are perfectly within their rights to assume their own eyes did not lie to them.
http://www.intensedebate.com/people/JulesAime JulesAime

Two points:

1. Even Khadr's most determined defenders don't argue that he wasn't involved in terrorist activities. Their argument is rather that he was an impressionable teen under the influence of irresponsible adults and that it is not too late to rehabilitate him.

2. The tradition is that a person is innocent until proven guilty when before the court. If 20 people see me step out on the street and throw a brick through my neighbour's window and I plead not guilty, then the courts will act on the assumption that I am innocent until proven otherwise. Private citizens are under no such obligation. The twenty people who saw me throw the brick, for example, are perfectly within their rights to assume their own eyes did not lie to them.

http://intensedebate.com/people/SeanStok SeanStok

1. Just what terrorist act was he party to? The argument, in fact, is that he cannot be treated as a normal combatant, as per our obligations under the Child Soldier Treaty.

2. Remind me again what freedoms we're so vigorously trying to defend these days?
http://intensedebate.com/people/sea_n_mountains sea_n_mountains

Sean has effectively addressed your first point. as per your second point, while you are free to argue what you like (obviously) re his guilt or innocence, as you know this case is not as black and white as the example you provide (life rarely is hence jury trials). I would personally prefer however to let due process take its course, as I wish wold be granted to me if by some unforeseen occurrence i ever end up with serious allegations against me, and I am sure you would too.

but you still don't address my other point. in your original post you suggest how out of step SH would be if he were to repatriate, which ignores that every other western leader in his shoes has done exactly that.

http://intensedebate.com/people/JulesAime JulesAime

"I would personally prefer however to let due process take its course"

What part of the current appeal to the Supreme Court is not due process?
http://intensedebate.com/people/sea_n_mountains sea_n_mountains

I was specifically responding to your second point on personal judgment on criminal allegations.

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

Forgive me if I'm wrong, but didn't I see in your profile at one time that you are a law student, Jules? If you find yourself searching in vain for the drama in this story, you might be looking in the wrong place. Try looking under "Charter of Rights and Freedoms," and who loses when the government of the day is allowed to pick and choose the situations in which it is obliged to uphold them.

http://intensedebate.com/people/JulesAime JulesAime

Not sure what you are getting at here. Khadr and people actiung on his behalf are arguing he is entitled to certain rights and the government disagrees. As they are entitled to do under law, the government icontested this before the courts and, again, when decisions went against them, they appealed, as they are entitled to do. The Supreme court has announced that it will here that appeal.

Like SeanStok, I think you are mixing up your deeply held feeling that the situation is morally unjust with the actual legal actions taken by the various governments involved. You can reasonable argue that they are wrong (and some days I would agree with you) but you can't argue hat they are not legally entitled to make the moves they have made. Even if they lose every case they argue, they are still legally entitled to make them in the first place.

If you go back and look at my original point, you'll also note that it was political not legal or moral. I don't think there is any political drama here. You don't have to agree with me but there it is.
http://www.intensedebate.com/people/JulesAime JulesAime

Not sure what you are getting at here. Khadr and people acting on his behalf are arguing he is entitled to certain rights and the government disagrees. As they are entitled to do under law, the government contested this before the courts and, again, when decisions went against them, they appealed, as they are entitled to do. The Supreme court has announced that it will here that appeal.

Like SeanStok, I think you are mixing up your deeply held feeling that the situation is morally unjust with the actual legal actions taken by the various governments involved. You can reasonable argue that they are wrong (and some days I would agree with you) but you can't argue hat they are not legally entitled to make the moves they have made. Even if they lose every case they argue, they are still legally entitled to make them in the first place.

If you go back and look at my original point, you'll also note that it was political not legal or moral. I don't think there is any political drama here. You don't have to agree with me but there it is.
http://www.intensedebate.com/people/JulesAime JulesAime

Not sure what you are getting at here. Khadr and people acting on his behalf are arguing he is entitled to certain rights and the government disagrees. As they are entitled to do under law, the government contested this before the courts and, again, when decisions went against them, they appealed, as they are entitled to do. The Supreme court has announced that it will hear that appeal.

Like SeanStok, I think you are mixing up your deeply held feeling that the situation is morally unjust with the actual legal actions taken by the various governments involved. You can reasonable argue that they are wrong (and some days I would agree with you) but you can't argue hat they are not legally entitled to make the moves they have made. Even if they lose every case they argue, they are still legally entitled to make them in the first place.

If you go back and look at my original point, you'll also note that it was political not legal or moral. I don't think there is any political drama here. You don't have to agree with me but there it is.

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

I'm just trying to help, friend. You said you weren't sure you saw what made it a dramatic story. I said that I see plenty of potential for drama here, and using something I knew about you, offered a suggestion about where to look.
Now you say you were talking about political drama, encouraging me to go back and look at your original point. Do you mean this one? "I'm not sure I see why this is such a dramatic story." It didn't seem at the time that you were emphasizing one particular kind of drama over any other kind.
So, uh, thanks for being one of those people who can't understand why, when they take such care to speak so clearly, that nobody seems to understand them.
And thanks for saying I don't have to agree with you about the amount of political drama on offer, unless you meant something else by that.

http://intensedebate.com/people/JulesAime JulesAime

And the Charter applies how exactly?
http://intensedebate.com/people/craigola craigola

If you go back and look at my last point, you'll also note that it said, "Try looking under 'Charter of Rights and Freedoms,' and who loses when the government of the day is allowed to pick and choose the situations in which it is obliged to uphold them." Anyone with more brain power than an amoeba would recognize the inherent dramatic tension between the claim to rights and freedoms and their actual provision.
http://intensedebate.com/people/JulesAime JulesAime

The application of the Charter is a matter of interpretation by the courts and the government has a right to pursue their interpretation all the way to the highest court as they are doing in this case. That is not picking and choosing.

And, as I said at the start, I don't think there is any political drama here. There is obviously intense moral drama for you because of your strongly held views but I doubt very much that there is any political price for Harper here at all.
http://intensedebate.com/people/craigola craigola

Um, yes, okay, er, duly noted.

http://intensedebate.com/people/SeanStok SeanStok

Has that fact even been established in a fair court of law?

And the fact that the USA was doing an end-play around Geneva Convention rules by calling all combatants "terrorists" has no bearing on this?

What about Canada's commitment to the Child Soldier Treaty?
tobyornottoby

Completely cowardly and dishonest behaviour by the Government of Canada. They are uninterested in due process and won't repatriate because they know Khadr surely be released shortly after being repatriated, even if convicted in a Canadian court.

Canadian criminal sentencing practice is to double and, in certain cases of egregious delay (which could be argued here) triple the time an accused spends in detention awaiting trial. Even doubling means that Khadr has already served 14 years as of July, way more than a juvenile would ever see in Canada.
Amateur Hour

Harper could request that Khadr be repatriated to stand trial here in Canada. The Crown just won a big terrorism case, so clearly, we have the capacity to try terrorists in our courts. (Not that this was ever really an issue as classified intelligence and testimony have been used in organized crime and anti-biker cases for years — often in the face of very real threats of violence and retribution).

Practically, this may reduce the Khadr issue's importance in an election. It would also show that he's willing to help Obama get Gitmo off of his back. That might benefit Canada on other fronts with the US.

Yet, Harper could also continue the appeal to the SCOC to defend the powers of Cabinet vs. the courts — on principle.

http://intensedebate.com/people/Stewart_Smith Stewart_Smith

I don't think there are any Canadian laws that Khadr broke. Rai made a point of this some months ago in a rather clear discussion of the subject. Once it became clear that Khadr would be coming back there were two possibilities:
1) negotiate an agreement that allowed careful monitoring of his activities
2) delay as long as possible, with Khadr coming back without any restrictions
Harper picked number 2 and we are approaching the end game.

http://www.backseatblogger.com Backseat Blogger

hmm.. totally technical question that maybe the reporter can answer: why is the case called

Prime Minister of Canada et al. v. Omar Ahmed Khadr (F.C.) (Civil) (By Leave) (33289)

and not the Queen vs……

http://intensedebate.com/people/JulesAime JulesAime

The explanation is in that bracket "(Civil)".
Lynda

This is an administrative law case. Because Khadr is seeking judicial review of federal decision makers' decisions, the case falls within the jurisdiction of the Federal Court of Canada. (If it was a usual civil case, then it would have been filed with one of the Provincial Superior courts – like the Alberta Court of Queens Bench, the Supreme Court of British Columbia or the Ontario Superior Court and the style of cause would have been Khadr v. Her Majesty the Queen in right of Canada. If it was a criminal law case, then the style of cause would be R. v. Khadr)

The style of cause (ie name of the case) has to do with the relief being sought: Khadr is asking the Federal Court to quash the decision of the respondents (ie the Prime Minister, Minister of Foreign Affairs, Director of CSIS and Commissioner of the RCMP) not to seek his return to Canada on Constitutional grounds and also on the grounds that their decision was unreasonable and taken in bad faith. Khadr is also asking the court to order the respondents to request the United States Government to repatriate him.

Rook

Of course Khadr's not a terrorist. He's one of the nice, beneovlent people who were at the Al Quaida training camps. Don't you know all they did there was roast marshmallows and train how to build birdhouses?