Blog of the International Journal of Constitutional Law

Canadian Supreme Court decision in Khadr handed down

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?


3 responses to “Canadian Supreme Court decision in Khadr handed down”

  1. Cheryl Saunders Avatar
    Cheryl Saunders

    Here’s a thought from an Australian perspective. The outcome on the question of remedy would certainly be the same here. Of course, allowance must be made for the critical difference in constitutional context, that Australia has no constitutional right to liberty and security. Nevertheless, Australian courts are typically wary of ordering positive action by the executive. Generally, they will not do so unless they can identify a duty on the part of the executive to act in a particular way; and even then, the court has discretion. The factors on which the Supreme Court rested its decision in Khadr would also have weighed with a court here: the uncertain effectiveness of the claimed remedy; the incompleteness of the information available to the court about what actually was going on; the perceived complexity and sensitivity of foreign affairs. The outcome might be presented here as the consequence of the separation of powers (and it would certainly not be portrayed as respect for the ‘Royal prerogative in foreign affairs’) but the underlying considerations would be the same.

  2. Ran Hirschl Avatar

    I don’t know about sophisticated, but a fellow Canadian to be sure. Supreme Court of Canada rulings in politically charged cases over the last 30 years, from the Patriation Reference (1981) to the Quebec Secession Reference (1998) and now to the Khadr case (one can think of at least dozen other examples) has taken a similar “yes and no”, middle of the road, call it “balanced” approach, keeping a watchful eye on the institutional legitimacy front. In quite a few landmark rulings, judicial rhetoric is decisive, but the actual outcome or remedy are deferential or moderate. Strategic judicial beahvior has no doubt played a role here. In rights cases this is made easier by S. 1, which by definition is prone to a “yes and no” kind of rulings.

  3. Fiona Avatar

    Not a Canadian perspective here but an Irish one–I think also that a similar result would have been reached here and, indeed, in the UK (see Abassi decision). The clear statement of constitutional principle (i.e. Executive must act within the confines of the Constitution and the Charter even in foreign affairs) is important, but of course the ‘fuzziness’ of the remedy might be problematic. I think the proof will be in the pudding: how will popular and political branches respond to the Court’s call for some kind of action? If nothing happens with the Court change its position as to what remedy is appropriate at this time? There is undoubtedly some rhetoric and judicial framing at play here, but I still don’t think the importance of the decision from the perspective of constitutional principle ought to be completely obscured by the admittedly less-than-satisfactory remedy decision.

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