For those following the Khadr case (previously discussed here), the Supreme Court of Canada has handed down its decision. To recap, Khadr is a Canadian citizen who was captured by the U.S. as a teenager and has been tortured in the course of his indefinite detention without trial at Guantanamo Bay. He has been fighting to try to get the Canadian government to request his repatriation, thus far to no avail. The upshot is that Khadr wins on the merits but is now limited to declaratory relief. The Court declares that the government’s knowing complicity in his detention and torture violated his Charter rights, but it overturns the lower court’s grant of injunctive relief directing the Canadian government to request his repatriation. It’s now up to the government to decide how to comply with the Court’s declaration. The decision is available here.
So from a judicial politics angle, the interesting question is, why rule for Khadr on the merits but reverse the lower court’s order directing the recalcitrant government to request his repatriation?
Should we take at face value the Court’s solicitude for the government’s need for latitude in the foreign policy arena? Is the Court trying to let Stephen Harper’s Conservative government save face? Is it worried about noncompliance? Perhaps some combination of all of the above: giving the government the ability to say that it is voluntarily choosing to request Khadr’s repatriation increases the probability that it will in fact do so? Do any of our sophisticated Canadian friends/my fellow Canadians have any thoughts?