Playing wedge politics with charter rights By Errol P. Mendes Published February 24, 2010    1 Comment

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Late on Feb. 16, just before the first Olympic hockey game by Team Canada, the Harper government responded to the Jan. 29 Supreme Court ruling on Omar Khadr.

The court had found that Canadian officials violated not only Canada's international legal obligations, but also Khadr's rights under the Charter of Rights and Freedoms by interviewing him at Guantanamo despite knowing he had been subjected to actions amounting to torture, and that the fruits of the interview would be passed on to his US captors.

While not agreeing with the remedy proposed by the Federal Court and confirmed by the Federal Appeal Court that Canada request the repatriation of Khadr, the Supreme Court declared that Canadian officials were mandated to take effective action to remedy the breach of his rights.

So what was the proposed remedy issued on a late Tuesday afternoon?

The Harper government revealed that it will seek assurances that US prosecutors will not use the evidence obtained from Khadr at Guantanamo by the Canadian officials and passed on to the US. That official request was made in a diplomatic note to the American government by Justice Minister Rob Nicholson.

It should be remembered that the remedy proposed by the Federal Court was in keeping with what the rest of Canada's allies did in requesting the repatriation of their citizens from Guantanamo to stand trial in their own countries or be released according to what legitimate evidence against them dictated. In the case of Great Britain, the request to repatriate even extended to a permanent resident of the country.

It should also be remembered that although the Supreme Court did not accept the lower courts' remedy for the violation of Khadr's rights, their reasons for doing so were very specific. The higher court ruled that the federal government should have the leeway to fashion a suitable solution to the ongoing violation of Khadr's rights, given the government's authority over the conduct of foreign relations.

But the court was also at pains to stress that the power to exercise the prerogative power to conduct foreign relations was not unfettered. It had to be conducted within the parameters of the Charter of Rights and Freedoms. Those parameters had not been respected when Canadian officials interviewed Khadr in violation of Canada's fundamental human rights obligations.

The court also noted that one of the reasons it didn't confirm the lower Federal Courts' repatriation order was because there was no clear record of the actions taken by the Canadian government in the case.

The decision of the Supreme Court, therefore, is hardly a condemnation of the lower Federal Courts' remedy. It issued a declaration that in effect warned the Harper government that it has the duty to effectively remedy this breach of the charter.

In fact, the court seems to be saying that the best solution would be for the Harper government to request Khadr's repatriation on its own, without being forced to do so by the courts.

Indeed, this may well be the wish of the Obama administration, given its desire to close down the facility and end the prosecutorial processes deemed contrary to international law by most of Canada's allies.

If this was the intent of the Supreme Court, the Harper government has chosen to ignore it. It has confirmed that it will not request repatriation and instead has done something ineffectual.

Under the diplomatic note, it is requesting that the US government not use the fruits of the interrogation conducted in violation of the charter. It would not be surprising if this token response to the Supreme Court ruling by the Harper government will result in the Military Commission simply ignoring the request or using the evidence without disclosing that it is doing so.

The proposed action by the Harper government in response to the Supreme Court of Canada's ruling is in effect to do nothing.

A Canadian government interested in seeing justice done in response to the Supreme Court's ruling, no matter how unsympathetic Omar Khadr or his family may be to many Canadians, would make the request for repatriation and investigate the possibility of trying Khadr under our own anti-terrorism laws.

The value of Canadian citizenship must remain indivisible. It cannot mean one thing to a category of individuals or groups the federal government or sections of the public may not like, and another thing to those who we can all have sympathy for. To divide such rights of citizenship would be a profound violation of the principles of fundamental justice.

But the principles of fundamental justice will not be observed because the Harper government is doing what it does best: playing wedge politics, even when important principles of justice and the standing of the charter are at stake.

The hard line plays well with the base supporters of the Harper government, which views Omar Khadr, and perhaps the entire Khadr family, as not really worthy of Canadian tolerance, mercy, respect or, indeed, justice.

This chillingly merciless view of how to dispense justice should worry all Canadians for one simple reason: There is no end to the potential victims of this disturbingly cruel form of politics.

Errol Mendes is a professor of international, constitutional and corporate law at the University of Ottawa. He is also the editor-in-chief of Canada's leading constitutional law journal, the National Journal of Constitutional Law.

editor@embassymag.ca