Saturday, January 30, 2010

SCC Khadr decision: reprise

My previous post decrying the Supreme Court of Canada's scandalous refusal to enforce the Charter of Rights in the Khadr affair occasioned a considerable amount of discussion in the comments.

The preponderance of the views expressed departed sharply from my own. Regular commenters Marky Mark (a practising lawyer), Jimmy Durante, Mike Brock and Jay Currie believe that the decision was well-reasoned and established the proper distance between judicial and executive powers. But I remain convinced that, if the Charter can't bind governments when its very purpose is to bind governments, then a knife has just been taken to it by the Supreme Court.

Brock's view is that the Charter does bind governments, but holds them back rather than urging them forward. In other words, it is preventative: it cannot impose positive obligations on a government to act.
Yet surely the deliberate refusal to act is itself an act.

If the Court has indeed adopted this view, as I believe that it has, then the Globe & Mail's Kirk Makin has an overly optimistic read of its ruling. In his opinion, the Court was suggesting that it might step in if the government does nothing, as it shows every intention of doing, but I cannot find that anywhere in the judgment. Makin writes:

But the court showed that a legal fist lies beneath its velvet glove. If the abuse of Mr. Khadr's rights is proven to be continuing, it warned that, “courts are empowered to make orders ensuring that the government's foreign affairs prerogative is exercised in accordance with the constitution.”

That is at paragraph 37 of the judgment. But more context is needed:

It follows that in the case of refusal by a government to abide by constitutional constraints, courts are empowered to make orders ensuring that the government’s foreign affairs prerogative is exercised in accordance with the constitution: United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283.

Should the notion that the Charter is an anchor, not a propeller, be accurate, then we need to see that paragraph, and the decision as a whole, as a statement of what the Court considers its power to be: reining in the government if it steps beyond its constitutional restraints, but not actually forcing the government to undertake positive measures to guarantee the rights and freedoms of Canadian citizens.

My citation of Doucet-Boudreau cut no ice. In that instance, the province of Nova Scotia was ordered to provide French-language services to its francophone minority, and the courts remained seized of the matter until the necessary measures were taken. Brock points out that there is a specific obligation in the Charter (Article 23) to provide those services, but nothing that requires the government to undertake positive measures to protect Canadian citizens abroad.

But, pace Brock and the other commenters, section 24 of the Charter needs to be applied in this context:


24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Is the government really not required to take positive measures to uphold Charter rights? Can it sit idly by and knowingly permit a citizen's rights to be infringed, refusing to act within its authority to protect that citizen? The Supreme Court of Canada says yes. But if that is the case, 24 (1) rings very hollow indeed: how does the victim of injustice obtain his remedy? How is he made whole?

The SCC unanimously found that Omar Khadr's rights under the Charter were not only breached when he was interrogated by CSIS and Foreign Affairs agents after being abused by his captors, but continue to be breached to this very day. Canadian conduct in this affair, said the justices, "did not conform to the principles of fundamental justice." The results of the poisoned interrogations may well be used against him once Khadr has his day in (kangaroo) court.

But the SCC offered only declarative relief, or, in plain English, a statement that, yes, Khadr's rights had indeed been grievously infringed, tsk, tsk. It declined to provide a remedy under 24 (1), as it is legally required to do.

This is nothing less than an assault on the Charter. Gar Pardy in today's Ottawa Citizen is correct: the SCC's decision was a political one. As he puts it:


The Supreme Court has spoken its last words on Omar Khadr. Regrettably it is a political decision and one that has little to do with justice, fundamental or temporal. Surprisingly all nine justices joined in the decision which gave pre-eminence to the government’s absolute power over foreign affairs. There is no joy for Khadr whatsoever in this decision and equally important there is no joy for Canadians who encounter serious difficulty in foreign countries.

Pardy doesn't hold back, referring to the decision as "judicial gerrymandering." The rights of a citizen under Section 7--"life, liberty and security of the person"--is now, thanks to the Supreme Court, officially trumped by the arbitrary exercise of the Royal Prerogative by a government that has shown itself, again and again, to be hostile, or at least selective, when it comes to human rights. (We "democratic deficit" types had better add the abolition of that smelly feudal holdover to the list of long-overdue reforms to Canadian governance.)

The Court properly decided not to attempt to fashion a specific remedy itself. What the justices should have done, however, is to have given the government time to construct its own remedy that would uphold the Charter rights of Citizen Khadr. Instead, the Court simply bowed out. Khadr's rights were infringed: too bad, so sad.

Stephen Harper, fresh from telling Parliament to take a hike when the latter demanded the production of documents, and then literally sending them on that hike shortly afterward, has now been legally held to be above the law in its exercise of the Royal Prerogative, which, inter alia, vests in the Prime Minister and his government the power to sign treaties, declare war--and issue passports. Somewhere in the Montreal area, Abousfian Abdelrazik must be thanking his God that the government didn't appeal his case to this Supreme Court.

Canadian democracy, always a ramshackle old schooner, has just taken another direct hit at the waterline. And the citizens, whose only constitutional power lies in our rusticated elected representatives, can't do a damned thing about it--at least for the moment.

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