Supreme Court of Canada to hear Khadr appeal
Ref.:"Supreme Court to hear Khadr case," Tonda Mac Charles, [Sept. 4, 2009]

Friday, September 04, 2009: The Supreme Court of Canada announced this morning that they would hear Harper’s appeal from the Federal Court of Appeal decision ordering the Prime Minister, the Minister of Foreign Affairs, the Commissioner of the RCMP and the Director of CSIS to ask the U.S. to release and return Omar Khadr.

The grounds for appeal advanced by the Department of Justice on behalf of Harper and the other respondents are reported to be:

1.       That the decisions of the executive (Harper et al) having to do with foreign affairs and/or international relations cannot be reviewed by the court. ( N.B. The Federal Court of Appeal dismissed this argument on the basis that to allow members of the executive to make decisions that could not be reviewed by the court even on issues of illegality is contrary to the rule of law.)

2.       The government does not have a duty to protect citizens outside Canada from illegal actions by other states or from actions of Canadian officials that violate Canadian and/or international human rights law.

The case will be heard on an expedited basis on November 13, 09.

The Supreme Court of Canada already ruled that Canadian officials violated Canadian law when they interrogated Omar Khadr at Guantanamo Bay after being advised that U.S. officials had tortured Khadr for a month prior, specifically to ‘soften him up’ for interrogation by DFAIT and CSIS officials. (Canada [Justice] v. Khadr, [2008] 2 S.C.R. 125.) In that decision the Supreme Court of Canada also ruled that the Canadian Charter of Rights and Freedoms “applies to constrain the conduct of Canadian authorities when they participate in a foreign legal process that is contrary to Canada’s international human rights obligations”. (Referred to in, The Prime Minister et al v Khadr, 2009 FCA 246, at para. 26.)

Prime Minister Harper, the Commissioner of the RCMP, the Director of CSIS and the Minister of Foreign Affairs apparently assert the unrestricted right to set aside the law, human rights and the rule of law when it suits them to do so.

The Canadian Charter of Rights and Freedoms begins with the statement, “Whereas Canada is founded upon principles that recognize the supremacy of …the rule of law.” . The rule of law requires the law to be the guardian of justice: a guarantee against tyranny.

“[T]he rule of law, the principle which requires that there should be laws which lay down what the state may and may not do and by which one can test whether such power which it claims, or any particular exercise of such power is legitimate and a system of courts independent of every other institution of the state, including the legislators and the executive, which interprets and applies those laws.” (P. Sieghart, International Human Rights Law, cited in Lord Elwyn-Jones,Judicial Independence and Human Rights...; R. Blackburn & J. Taylor, eds., Human Rights for the 1990s: Legal and Political and Ethical Issues(London: Mansell, l991, apprec. LRWC at 44).

The Supreme Court of Canada has already affirmed the right and duty of the court to review executive decisions relating to national defence and external affairs in Operation Dismantle v. The Queen, (l185) 2 S.C.R. (2d) 223.

We note that in dealing with Omar Khadr, the Harper executive has acted contrary to many laws, principles and recommendations, including:

1.       the Criminal Code by failing to abide by the April 23, 2009 order of the Federal Court (see s. 127 of the Criminal Code); and,

2.       the recommendation of the Standing Committee on Foreign Affairs that Canada seek Khadr’s release and repatriation (see Report of the Standing Committee on Foreign Affairs on Omar Khadr, June 2008);

3.       the March 23 2009 motion of Parliament that the government comply with the Standing Committee’s recommendation to secure Khadr’s release and repatriation;

4.       the Convention against Torture which “prohibit questioning of a prisoner after he has been subjected to cruel and abusive treatment to induce him to talk.” (The Prime Minister et al v Khadr, 2009 FCA 246, para. 54.)

5.       the most basic principles of fundamental justice enshrined in the Charter of Rights and Freedoms and in all the major international human rights instruments binding on Canada including: freedom from torture and other cruel, inhuman and degrading treatment and punishment, illegal and arbitrary detention and ex post facto criminal charges, the right to be treated as a child, right to a fair trial, right to counsel, right to a hearing by an impartial and independent court, right to habeas corpus, rights to disclosure of evidence to be used against him and of inculpatory evidence.

6.       Canada’s obligation under the Convention against Torture to prosecute the perpetrators of torture (Khadr v. Canada (Prime Minister), 2009 FC 405, para. 57)

7.       Canada’s obligation under the Convention against Torture to ensure that no fruits of torture are used as evidence in any proceedings, when Canadian officials gave the U.S. records of their interrogation of Omar Khadr;

8.       The Convention on the Rights of the Child (ratified by Canada 1991), the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (ratified by Canada 2000) and the Principles and Guidelines for the Children Associated with Armed Forces or Armed Groups (endorsed by Canada 2007), all of which oblige Canada to ensure that Khadr, as a child when he was captured, is afforded adequate protection of his rights and is given treatment that promotes his physical, psychological and social rehabilitation and reintegration in priority over punishment and retribution. (Khadr v. Canada (Prime Minister), 2009 FC 405, para. 57, 72 and 78.).;

Reports of the appeal to the SCC [Supreme Court of Canada] indicate an intention by the Harper executive to operate outside the rule of law.

We were reminded of the atrocities that flow from international relations conducted outside the rule of law in the March 4, 2009 statement of the United Nations General Assembly President Miguel d'Escoto Brockmann,

"The aggressions against Iraq and Afghanistan and their occupations constitute atrocities that must be condemned and repudiated by all who believe in the rule of law in international relations,"

The Prime Minister Harper and his executive now apparently claim—and ask the SCC to affirm--that all actions and policies designated, however arbitrarily, as relating to ‘foreign affairs or international relations’ cannot be reviewed by the courts. The Supreme Court of Pakistan has recently rejected such a claim.

We hope that you will exercise your democratic right to peacefully and forcefully voice your opposition to such an alarming assertion.

Gail Davidson

Lawyers Against the War
Tel: +1 604 738-0338
Fax: +1 604 736-1175



posted with permission
5 september 2009
gerald and maas night's lantern