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The final legal Canadian chapter of Omar Khadr vs the Government Of Canada

Legal arguments start today at the Supreme Court of Canada for this (in)famous case. The Conservative government has appealed 2 Federal Court rulings that it must ask the US for the repatriation of Omar Khadr from Guantanamo Bay due to his rights being violated as a Canadian citizen. Kady O’Malley is liveblogging it today, as I type, but here’s the summary of what will be going on:

Opening arguments get underway at 9am, starting with an hour each for the government and the Khadr legal team, followed by ten — ten! — intervenors with ten minutes each. Ooh, just like an opening statement at committee! This is the first time that I’ve attempted to liveblog a Supreme Court hearing, although I’m sure it’s not the first time it’s been done in Canada.

More or less, the Conservative government will be arguing that the Supreme Court and other courts should butt out of its handling of foreign affairs, regardless of whether a Canadian’s rights have been violated or not. We’ll see if the Supreme Court buys that argument or not.

UPDATE: Interesting note here:

““All it takes is a phone call—a call between the prime minister and the president,” says Dennis Edney, Khadr’s ever-relentless lawyer. “I’m told that the Americans don’t have any concerns about sending Omar back to Canada. All the pressure is coming from Stephen Harper.””

Politics and the George Bush philosophy on trumping human rights is at play here.

UPDATE 2 @ 1:26pm: Pierre Poilievre is a fool for even implying/hinting the Conservative government would ignore a Supreme Court ruling that favored Khadr. That would cause a much more legitimate and graver constitutional crisis then the so-called crisis of the ‘coalition’ last December. On the other hand, it would be fun to watch the Supremes rule Harper and his Justice Minister Nicholson were in contempt of court for ignoring any such order and plunking them into jail til they complied.


21 comments to The final legal Canadian chapter of Omar Khadr vs the Government Of Canada

  • The Charter makes no case for arguing that a Canadian’s rights end at our border. However, the rule of law makes it clear that we cannot enforce the Charter outside of our borders (duh). However, when our government interacts with Canadians it has to obey the Charter, regardless of where that citizen is.

    Our government cannot use third parties, or facilitate third parties violating our rights. It has done so in this case. So it must do what it can to enforce the Charter.

    When a Canadian requests aid from the government, regardless of jurisdiction, our government has Charter obligations to follow. The Charter does not say different. However, there is often little government can do.

  • If the SCC rules in favour of Khadr, they will have to justify that ruling. Your post implies it cannot be justified, which really means you are doing what you accuse others of doing.

  • KC

    Foot to fire – Show me where it says in those agreements that Canada is obliged to make representations to a foreign government about someone in the position of Mr. Khadr.

    • Roll Tide

      He can’t. When the left play’s the “hate” card they already lost.

    • Gayle

      @KC, Maybe you should wait for the SCC to rule.

      • KC

        Gayle – I AM waiting for the SCC to rule. Thats part of the point. I tire of legal amateur hour on this subject. People pretend they actually understand the Charter and previous jurisprudence to throw mud at the Government when they don’t even appear to have a grasp of the concept of judicial review. I can’t predict where the SCC will go (litigation is unpredictable) but what I do know is that if the court rules in favour of Khadr they will be blazing new constitutional trail not simply reaffirming existing principles. So it is hardly fair to accuse the government of stomping on the clear constitutional rights of an individual,

        • Gayle

          @KC, Since when has constitutional interpretation been static?

          If the SCC rules in favour of Khadr, they will have to justify that ruling. Your post implies it cannot be justified, which really means you are doing what you accuse others of doing.

        • Gayle



          Just so you have a bit of context, here is a link to a bio on one of Khadr’s lawyers:

          I am sure even Nate would say he cannot predict what the courts would do, but I would be surprised if there were no merit to his argument given his credentials and the fact he is spending a lot of his own money to do this case. It is not like he needs the work.

  • Frunger

    ” would cause a much more legitimate and graver constitutional crisis then the so-called crisis of the ‘coalition’ last December”

    Humm. I would think the SCC dictating foreign policy to the Government of the day to be something of a constitutional crisis.

    I’m not convinced that the ‘Canadian’ Charter of Rights and Freedoms applies to you once you leave ‘Canada’, but if the SCC wants Khadr back, I’m sure they’ll find some way to twist . . . er “interpret” it so that it does.

  • Roll Tide

    Obama is proceeding with the very serious charges against Khadr. We should let the American process take its course, as Spector suggests.

    I remember Chretien going to bat for Khadr’s father when he was involved in a bombing in Pakistan. Chretien got the release, only to see him rejoin Bin Ladin with his son.

    Sometimes Liberals never learn.

    • foottothefire

      @Roll Tide,
      that “serious charges”, thing is cheap, Harperite sophistry and YOU know it!.
      The ‘serious charges’, were laid by an illegal entity outside the jurisdiction of the USA specifically to avoid serious legal proceeding on USA territory.
      Harper was appealing to hate when he uddered the words because hate is one of the oldest, most successful appeals…right, RT?

  • KC

    “You don’t get to pick and choose which of your citizens you are going to protect.”

    Yes and no. If you are not legally obliged to protect any citizens (which is really the crux of the legal issue in the Khadr case is) legally you CAN pick and choose who you protect so long as you don’t pick based on sex, age, race, etc. etc.

    • @KC, I do not see that in the Charter at all. Citizens of Canada have rights and freedoms which are not limited by Canada’s border. To what extent Canada can work to ensure that a citizen is treated fairly under any foreign process, Canada has that obligation. In this case, Canada was additionally involved in the process of detention and interrogation.

      Our government has an obligation to take reasonable steps to keep our rights and freedoms in effect.

      Extraordinary efforts are not required as section 1 of the Charter kicks in. However, our government asking for repatriation is not a big deal. If refused, there’s an obligation to protest unfair practices which run contrary to our Charter.

      It may be possible for diplomatic concerns to raise an exception on Section 1. Maybe.

      • KC

        Mark –

        First, the only rights that the Charter provides for “citizens” is the right to vote and mobility rights.

        Second, it was unheard of (to my knowledge at least) before the Khadr case that the Charter required Canada to take positive steps to protect the “life liberty and security of the person” outside of the territorial jurisdiction of Canada. In fact most previous jurisprudence says exactly the opposite. Even Khadr’s counsel concedes that there it is only in these exception circumstances that there is an obligation to protect Canadians detained abroad.

        Third, the only part of the Charter that says anything about equality is quite clear in that it only prevents ‘discrimination’ within the listed categories or ‘analogous grounds’. Nowhere does it say that all people must be treated equally in all respects. Therefore my statement is correct: if the government has no obligation to protect citizens abroad (which the SCC very well may order) it is allowed to pick and choose who it protects so long as the picking and choosing isn’t based on the prohibited grounds of discrimination.

        • foottothefire

          conveniently forgotten in your argument is the fact that Canada is a signatory to Child Warrior agreements…but then again, Harperites weren’t in power when those rules were made up so they don’t count, right? Kinda like the abortion thing and the execution thing.

  • Mar Raz

    Suppressed Medical Records (File 5100-13465/001)

    St. Catharines, Ontario (Pearson Park)

    – Privacy Commissioner of Canada (Sect. 25,26,28)

    – C.M.H.A/C.A.M.H. – Brock University

    Further details:

  • “You don’t get to pick and choose which of your citizens you are going to protect.”

    Bingo! And he was a child soldier, for God’s sake.

    All the time *all the time* I hear right-wingers claim that that if one’s rights are trampled, then everyone’s are. Of course, there’s a little asterisk beside that ‘heartfelt’ belief that says “Unless we don’t like you.”(*)

    (*) especially if the person isn’t white and Christian.

  • Gayle

    No one knows what the SCC is going to do, so I suggest we just cool our jets a bit.

    Just an FYI, but I received an email a while back seeking donations to the legal defence team. Both lawyers have not only appearing pro-bono, but are also spending tens of thousands of their own dollars to defend Khadr (SCC appeals are expensive). They had a pay pal account but the company seized all the donations (I think on government orders???) so none went to the lawyers.

    By the way Tomm, Canada’s immigration policy mandates repatriating non-citizens after they have committed a violent criminal offence in our country – even if that person has spent his or her entire life in this country before committing that offence. The home country has no choice but to receive that person. I know of one case where the man had been in Canada since he was a baby. He committed a serious rape and was deported back to England, even though he had not spent a day there since he was 6 months old. England can hardly be responsible for his violent behaviour, but they were forced to accept him.

    In any event, I presume Scott’s concern here is Canada’s total abrogation of its responsibilities to one of its citizens. You don’t get to pick and choose which of your citizens you are going to protect.

  • Tomm


    Why are you so desperate to have this despicable person back in Canada?

    If the Supreme Court rules that he MUST be repatriated, so be it, but until then, why do YOU want him here?

    It is all politics iasn’t it?

    • marie

      Tomm, this man was a mere child when this all happened and there is a lot of evidence laid out that he was incapable of doing this crime by the condition of him when he was taken to a hospital. He has not yet even after what 8 years of defending himself in a court of law been given a chance to defend himself. Remember, Innocent until proven guilty. This incident is one more reason why King Steveie has not or will ever never win a majority. Its not just about Stevies opinion, it is what is the law and to heck with Stevies opinions. Put this issue to rest, let this man defend himself in his country, respect the Supreme Couts descions and move on.

  • Frank

    Hi Scott,

    It seems that the Supreme court, egged on by the Liberals, thinks that our Government should give Omar a hand since he is innocent of an involvement with terrorism.

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