SCC Decision on Omar Khadr

Today, the Supreme Court of Canada overturned what could have led to the repatriation of Omar Khadr from the Guantanamo Bay detention centre where he has been held for more than 6 years. (CBC News).

While deeply dismayed at the continuing injustice, what the SCC called Khadr's "[continued violation] of rights to life, liberty and security of person", the SCC reflected an hesitation to overstep its jurisdiction. It concluded that the precedent of forcing the government to overstep its boundaries in international relations outweighed Khadr's Article 1 Charter rights. The SCC outlined the severity and urgency of the situation, as well as the initial violation of Khadr's rights at the initial stages of interrogation including the exchange of information to American authorities that resulted in his imprisonment in Guantanamo Bay. There is late-blooming public outcry to release Khadr from US custody and have him tried in Canada. It is hoped that the government, in light of the evidence, will make the decision to return Khadr to Canada.

There are disturbing implications for the SCC decision. First, in light of questionable interrogation tactics, charges of torture, extraordinary rendition and the persistence of the death penalty, it is shocking that Canada would have handed over Khadr to American authorities, let alone allow him to remain in their custody. The arguments articulated in opposition to the Safe Third Country Agreement are absent in this case it would seem. It is hypocritical that Canada maintains its reputation as a refuge from US extradition for Americans facing the death penalty or the draft, while simultaneously refusing to help one of its own citizens - regardless of his actions.

Secondly, there has been little or no action taken on the basis that Khadr was charged as a minor and should, therefore, be entitled to be treated as such, including protection under laws governing the rehabilitation and prosecution of child soldiers, in accordance with the principles set out in the UN Convention on the Rights of the Child.

Third, the government's inaction, similar to the inaction on the Kazemi and Arar cases, is a further reminder that no Canadian anywhere or at anytime can be assured of their protection by Canadian authorities overseas. Furthermore, the indication that the Khadr case will continue to be a political football flies in the face of our civic values and demonstrates the shameless self-promotion of Canada's political parties.

One wonders at the ability of the SCC to, on the one hand, strike down the use of security certificates but draw the line at Khadr.

The Supreme Court decision indicates that balance of power is alive and well in Canada, and that healthy debate about the future of human rights and civic values is still to come. This is coming at a very high cost to the action taken on human rights law. Similar to the Arar case, it seems like the Court is only delaying the inevitable reparations the Canadian government will have to make for the wrongful betrayal and imprisonment of one of its own by not sending a stronger message to the government to repatriate Omar Khadr.