Is Harper Threatening the Rule of Law?

The Conservative government continues to flout Court rulings regarding Omar Khadr.

There is a dark shadow over the rule of law in Canada. That shadow is being cast by the Harper government’s continual flouting of decisions made by the Supreme Court of Canada and the Federal Court in its desire to exact the maximum amount of punishment on Omar Khadr.

As is well known, on Jan. 29, 2010, the Supreme Court ruled that because Canadian officials had participated in the detention of Khadr at Guantanamo Bay, they had not only violated Canada’s international legal obligations, but also contributed to the ongoing violation of Khadr’s rights under the Charter of Rights and Freedoms.

Canadian security officials interrogated Khadr knowing that he had been subject to sleep deprivation and that the fruits of the interview would be shared with U.S. officials. This led the first Federal Court ruling that the proportionate remedy would be for the Harper government to request Khadr’s repatriation to Canada. However, on appeal, the Supreme Court ruled that the federal government should have the leeway to fashion a suitable solution to the ongoing violation of Khadr’s charter rights, given the government’s authority over the conduct of foreign relations.

The vindictive response by the Harper government was to merely ask in a barely noticed diplomatic note that the U.S. not use the fruits of the unlawful interrogation by Canadian officials. The government in all probability knew that the U.S. would ignore this note, which is exactly what it did. Khadr’s lawyers, running out of options, again sought Federal Court review of this close to contemptuous response to the Supreme Court ruling.

On July 5, 2010, Federal Court Justice Russel Zinn rejected the Harper government’s defence that its responses were not subject to judicial review as it has complete jurisdiction over the conduct of foreign relations. As in the Supreme Court decision, the Federal Court stressed that the exercise of foreign relations remained subject to review insofar as it affected the rights and legitimate expectations of Khadr. The Federal Court ruled that the breach of Khadr’s rights continued because of the ineffectiveness of the diplomatic note, and that he had a legitimate expectation following the Supreme Court’s ruling that Canada should take steps to remedy this situation.

While Harper government apologists have tried to decry the Federal Court for reaching beyond its jurisdiction, what the Court was actually trying to do was to get Harper government to step out of the shadow it is imposing on the rule of law. The Court ruled that within seven days the government should provide Khadr with a list of potential remedies that would cure the breach of his charter rights as identified by the Supreme Court. Then the Court requested that Khadr’s lawyers respond to those proposals and identify any others that had not been offered by the government. The Court stressed that it would retain jurisdiction to determine whether a proposed remedy is appropriate if the parties failed to agree, and ultimately impose a remedy, including ordering the government seek the repatriation of Khadr, if the Harper government continued beyond a reasonable amount of time to thumb its nose at the original Supreme Court judgment.

The Harper government chose to stay in the shadows, and on the seventh day appealed the decision of Justice Zinn to the Federal Court of Appeal. No doubt there will be further appeals to the Supreme Court if the government loses there.

No matter how unsympathetic Khadr or his family may be to many Canadians, there are much bigger issues at stake here. In regards to Canada’s standing at the international level, the Harper government is shredding any credibility that Canada has spent decades building on the rights of the child and the proper treatment of child soldiers. Khadr was 15 years when he was charged with killing a U.S. soldier. Child soldiers in the Democratic Republic of the Congo who have killed and mutilated many innocent people are being demobilized and rehabilitated with Canada’s blessings, while Khadr remains in Guantanamo.

At the domestic level, this seems to be an affirmation by the Harper government that there are some categories of Canadians who do not deserve any form of justice or protection under the rule of law, either domestically or internationally. For a Canadian like Khadr, imprisoned without a trial for eight years, subjected to forms of torture, and forced to undergo a military trial that has been criticized around the world, no mercy is available.

The vindictiveness and mean-spiritedness of the Harper government is a real threat to the supremacy of the rule of law and the inherent goodness of the Canadian people.