SCC Unconvincing in Khadr Decision

The much anticipated arrival of the Supreme Court of Canada’s (“SCC”) decision on the repatriation of Toronto-born Omar Khadr came on Friday. Familiar to most Canadians by now, Khadr was arrested when he was 15 years old and was charged with murder, conspiracy and support of terrorism. Now 23 years old, he has been imprisoned at Gunatanamo Bay, Cuba ever since. He applied to the Federal Court  for an order that he must be repatriated which was successful and subsequently upheld on appeal.

Overturning the Federal Court of Appeal’s decision, the SCC refused to order the Canadian government to bring Khadr back, submitting that it was not the correct remedy under s. 24(1) of the Canadian Charter as it would infringe on the government’s common law Royal Prerogative over foreign relations. This decision came despite the SCC recognizing that the Canadian officials who interrogated Mr. Khadr in 2003-2004:

participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice[i]

The remedy granted was that of “declaratory relief” – declaring that Khadr had had his rights violated and leaving it to the government to decide what to do with this “new” information. Wow! Thanks Supreme Court of Canada! Some remedy! I…

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Last Week in International Law

1. Convention on the Rights of the Child (CRC)’s 20^th Anniversary

The CRC is the most universally accepted international human rights treaty in the world, ratified by every country except the US and Somalia.  The CRC is based on the principles of non-discrimination; the best interests of the child; children’s rights to survival, development, and protection; and children’s right to participate in decisions affecting them.  Ten years on, in Canada, it became one of the issues in the Baker litigation, in which the SCC decided that although the CRC had not been implemented into domestic law, its values should still inform the contextual approach to domestic statutory interpretation and judicial review.

Twenty years on, UNICEF reports fewer child deaths, improved child health, and improved and more gender-equal primary school enrollment.  However, approximately 1 billion children still suffer some form of “material deprivation”, and children are disproportionately likely to suffer the negative effects of the global economic crisis and climate change.  UNICEF reaffirms the importance of the best interests principle in governance; capacity-building to realize children’s rights; support for social and cultural values that respect children’s rights; and cooperation “to make the vision of the Convention a reality for every child.”

2. Khadr’s Day at the SCC … and US Military Tribunal?

On November 13, the SCC heard arguments in the case of former child soldier/alleged terrorist and Canadian Guantanamo detainee Omar Khadr.  In support of its request to set aside…

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