I am not surprised by the ruling of the SC today, disappointed but not surprised. Like many I thought there was enough wiggle room for the SC to order the repatriation of Mr. Khadr. They could have ordered the government to repatriate Khadr solely in virtue of the fact that the government brought its actions under the jurisdiction of the SC when agents of the Canadian state wilfully participated in the violation of Mr. Khadr’s human rights when they interrogated him after being subjected to torture (see paragraphs 21-26 of the SC ruling). In effect they ruled this but were not willing to argue that given repatriation was the only remedy they were thus not intruding on the governments prerogatives in terms of foreign affairs but rather forcing the government to provide a remedy. They could have even demanded that the government find a suitable remedy and ruled that they had no power to force the government on issues of foreign affairs. Note that the SC in fact nearly ruled this (see para 47) save for the fact no sanction was implied in the case where the government did not find an appropriate remedy. Thus as it stands, there is not a judicially enforceable remedy nor any compulsion for the government to find one.
If they had, it would have been a nice ruling because it would have prevented the Canadian State from engaging in or aiding and abetting torture. What we got with today’s ruling from the SC was essentially a hear no evil, see no evil, speak no evil ruling which actually provides both incentives and guidelines for the Canadian State to engage in torture outside of Canada.
My hope is that the conservatives fought this one to the SC on the principle of the supremacy of parliament (cabinet) on matters of foreign affairs and thus intend to ask for the repatriation of Mr. Khadr. I am doubtful.
The conservatives have shown themselves to be mendacious and vindictive. A simple act of grace would be out of character.
Canadians are privileged to live in a peaceful country. Much of our collective sense of freedom and safety comes from our community’s commitment to a few key values: democratic governance, respect for fundamental rights and the rule of law, and accommodation of difference. Our commitment to these values must be renewed on every occasion, and the institutions that sustain them must be cherished. Among those institutions, I believe that Canadian courts, including the Supreme Court of Canada, play an important role. A strong and independent judiciary guarantees that governments act in accordance with our Constitution.
It is hard not to reasonably conclude that the SC decided to take a very narrow view of the constitution and very narrow view of its obligations. For what got renewed today was not core Canadian values but a sense of cynicism towards these values; a sense that the Court in its desire to not be politicised has nonetheless been politicised.
To be fair this is not the SCC’s fault. Canadian politicians have made a nasty habit of willingly trouncing on basic rights and freedoms and then waiting for the courts to force them back into conformity. Allowing cynical politicians to decry: “the activist court made us do it.” I appreciate that the court wants to avoid this trap but in doing so it might just be savaging its own independence.