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(Toronto, Jan. 29, 2010) – In its decision today in the Prime Minister of Canada v. Omar Khadr, the Supreme Court of Canada found a s.7 breach of the Charter. The Court has granted Khadr a declaration of the Charter breach, but is ultimately silent on the appropriate remedy, leaving it to the federal government to decide how best to respond to the fact of the declaration. At issue in the case was whether the Federal Court’s order that the Prime Minister must request Omar Khadr’s repatriation to Canada will stand. The SCC held that ordering the Canadian government to request Omar Khadr’s repatriation would be an appropriate remedy but declined to make the order because of an institutional concern about the appropriate role of the courts in instructing the executive on how to conduct foreign affairs.
“We are very disappointed with the decision,” says Diana Juricevic, Director, International Human Rights Program, UofT Faculty of Law.
Cheryl Milne, Executive Director of the David Asper Centre for Constitutional Rights, UofT Faculty of Law says, “One hopes that the strong pronouncement by the unanimous Court that Canada has violated Omar Khadr’s rights and that the impact of that violation continues unless the government acts, will carry sufficient weight with the Prime Minister to persuade him to do the morally and legally right thing-- seek Omar’s repatriation.”
The International Human Rights Program and the David Asper Centre for Constitutional Rights at the UofT Faculty of Law joined forces with Human Rights Watch to intervene in the appeal before the Supreme Court of Canada.
Professor Audrey Macklin, co-counsel for the interveners says, “The Supreme Court of Canada has spoken clearly, definitively and unanimously on the past and ongoing present violation of Omar Khadr’s rights by the Canadian government. It has pointed to a request for repatriation as an appropriate remedy for the violation of those rights. It now falls to the Prime Minister to do what the Supreme Court of Canada encourages but does not force him to do. If the word of the Supreme Court of Canada that the government has violated Khadr’s Charter rights and should seek repatriation is not enough to motivate this government to act, then I am not sure what is enough to motivate this government to do the right thing.”
Macklin, Associate Professor at the UofT Faculty of Law goes on to say, “Failure to respect a very clear direction from the Supreme Court of Canada could provoke a constitutional crisis. The government should seek repatriation, and if Prime Minister Harper fails to do so, he is basically placing the executive branch of government above the law.”
Omar Khadr, is a Canadian citizen born in Ottawa, Ontario in 1986. He was taken prisoner in Afghanistan when he was 15 years old and has been detained by U.S. Forces since 2002 at Guantanamo Bay, Cuba, where he is currently facing murder and other terrorism-related charges. During his detention, Omar was given no special status as a minor and was subjected to torture in the form of sleep deprivation known as the “frequent flyer program”. Canadian officials interviewed Omar in Guantanamo Bay knowing that he had been subjected to this treatment. Omar asked the Canadian Government to repatriate him, but to no avail. He also sought judicial review of the policy and decision of the Canadian Government not to seek his repatriation. The Federal Court granted his application and ordered the Government to seek his repatriation from the U.S. as soon as practicable. In a majority decision, the Federal Court of Appeal dismissed the Canadian Government’s appeal. On the day that the Supreme Court of Canada heard the government’s appeal of this decision, the United States announced that they would proceed and try Omar Khadr before a military commission.
For further information, contact:
Audrey Macklin, Associate Professor, UofT Faculty of Law
Diana Juricevic, Director, International Human Rights Program, UofT Faculty of Law
Cheryl Milne, Executive Director, The David Asper Centre for Constitutional Rights