Playing Politics With Principles of Justice

By refusing to request the repatriation of Omar Khadr, the Harper government is playing to its base at the expense of the Charter.

On January 29, the Supreme Court ruled that Canadian officials participated in a detention process at Guantanamo Bay that not only violated Canada’s international legal obligations, but also contributed to the ongoing violation of Omar Khadr’s right to liberty and security of the person under the Charter of Rights and Freedoms. The interrogation of Khadr by officials who knew he had been subject to a form of torture and knew that the fruits of the interview would be shared with his jailors had led to the lower Federal Courts’ ruling that the proportionate remedy would be for the Harper government to request his repatriation to Canada. The rest of the western world had already done this for their citizens some time ago.

However, the Supreme Court did not confirm the lower Federal Courts’ remedy. 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.

The Court did, however, stress that there was a Charter breach by Canadian officials. It also noted that one of the reasons it didn’t confirm the lower Federal Courts’ repatriation order was because there was an inconclusive record of the considerations facing the government in regard to the request.

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

In fact, the Court seems to be saying that the best option 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 their 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 Court, the Harper government has chosen to ignore it. It has confirmed that it will not request repatriation and may instead do something ineffectual, such as requesting that the Military Commission that will try Khadr not use the fruits of the interrogation done in violation of the Charter. It would not be surprising, if this is the government’s token response to the Supreme Court ruling, that the Military Commission will simply ignore the request or use the evidence without disclosing that it is doing so.

A Canadian government interested in seeing justice done for Khadr, no matter how unsympathetic he 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. But this will not be done, 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, who view 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.