Justice Minister Rob Nicholson is taking the Canadian government out onto a weak limb, in its appeal of a court order on the issue of Omar Khadr's repatriation from the United States. It is weak legally and even weaker morally. There is no serious principle worth defending.
Here is the victory Ottawa seeks: that the Canadian government can be complicit in the abuse of a Canadian citizen's rights abroad – up to and including torture – without a court ordering that it do its best to bring that citizen home.
Whether the case is winnable is beside the point. Is it really a victory worth fighting for?
Mr. Nicholson might argue that he is upholding his duty as senior legal adviser to the Crown by defending the cabinet's right to undiminished authority in foreign-policy matters. But then, why did Ottawa not defend that right in June, when the Federal Court ordered Canada to repatriate Abousfian Abdelrazik of Montreal, a suspected terrorist who was passportless in Sudan? It accepted the decision, and brought him home.
Similarly, why did it not fight for the principle when the Federal Court ordered Ottawa in March to push U.S. authorities for clemency for the Canadian murderer Ronald Smith, on death row in Montana? It is hard to avoid the inference that the unpopularity of the Khadr family (dubbed “Canada's first family of terrorism”) helped Ottawa discover the will to fight.
Mr. Nicholson says the principle at issue is an alleged “duty to protect” Canadians abroad; he does not accept that such a duty exists. “Protection of whom?” asks his department's legal brief, filed in the Supreme Court. “From what?” The argument is disingenuous. The “duty to protect” arose only after Canadian officials interrogated a Canadian citizen knowing he had just been subjected to 21 days of sleep deprivation at the U.S. prison in Guantanamo Bay, Cuba. The Federal Court of Appeal suggested those techniques amounted to torture. Mr. Khadr was a minor at the time, and he had no lawyer. Canada then turned over the fruits of this interrogation to his captors.
Think of the potential consequences. Mr. Khadr, now in his early 20s, faces life in jail if found guilty of his alleged crimes, including murder. In these circumstances, Canada exploited his torture. Canada acted as if there were no Charter of Rights and Freedoms, and no Geneva Conventions.
Mr. Nicholson is putting his department's lawyers in a dubious position. They will have to stand up before the Supreme Court of Canada and explain why this country's intelligence officials were willing to countenance sleep deprivation verging on torture, applied to a citizen and a minor. They will then be asked: Should the Canadian courts sit on their hands while the government abuses citizens' rights abroad? And the lawyers will reply that foreign policy is a cabinet prerogative. The Supreme Court may not be very happy with this answer.
The courts should be slow to tell the government what to do in foreign policy. But when a Canadian's rights are abused abroad, more than just foreign policy is at stake; it's also about the basic liberties of Canadians. Consider what happened to Suaad Hagi Mohamud, a citizen jailed in Kenya this summer for allegedly falsifying a Canadian passport. Canadian officials said they had “conclusive” information she had lied. The results (until she established her identity with a DNA test) were horrendous. She became stateless. She was marooned in a distant prison. When Canada acts arbitrarily or abusively toward its citizens, in Canada or abroad, the courts may be the last line of protection.
Canada exposed Mr. Khadr to a risk of lifelong harm by colluding in a major rights abuse. Now it complains of a duty to protect. How about the duty not to do egregious harm? How about the duty to uphold the rule of law?
As Attorney-General, Mr. Nicholson should have the “moral courage to advance unpopular causes,” as the late Ian Scott liked to say. He should not be fighting against the unpopular, for a principle not worth defending.