Mere days after the Supreme Court of Canada denounced the federal government for breaching terror suspect Omar Khadr's rights, the government has called its bluff.
Legal experts said Wednesday that the government is on sound legal ground in ignoring a court ruling that was all bluster and no muscle.
In its ruling last Friday, the court found that Canada was party to illegal interrogations when Mr. Khadr was 15. The court issued a declaration that his Charter rights were violated, but left it up to the government to remedy the ongoing violation.
Wednesday, Foreign Affairs Minister Lawrence Cannon announced that the government will not ask for Mr. Khadr's repatriation from an American detention centre in Cuba.
"I'm not surprised that the government would give short shrift to the decision," said Allan Hutchinson, a law professor at York University's Osgoode Hall Law School. "I assume that the government calculated that sympathy for Khadr will not be strong enough to make this a huge problem for it in electoral terms.
"But, for a government to simply ignore the court and the Constitution strikes me as very problematic," Prof. Hutchinson added. "They haven't even given a justification for why they are breaching the Constitution. They are not even giving the appearance of having taken this seriously."
Kent Roach, a University of Toronto law professor, said the decision was so fuzzy and equivocal that Mr. Khadr will be hard-pressed to show that the government has flouted it.
Prof. Roach said the court had the power to order that the government seek Mr. Khadr's repatriation, but it shied away from going that far.
Prof. Hutchison said the judges are too politically canny to walk into an obvious political trap that could cost the court its credibility.
"They are smart enough to know that they won't ultimately be the winner in that kind of shootout," he said. "You can issue all sorts of orders, but at some point, you have to enforce them.
"It is very dangerous making orders that you ultimately won't be able to enforce. You have to be prepared to precipitate a big constitutional crisis."
University of Toronto law professor Lorne Sossin said the court also chose not to demand an explanation from the government if it opted to ignore the court's declaration.
"Having not done that, it's difficult to see that the government is somehow flouting the court," Prof. Sossin said. "In fact, the court may have resisted the temptation to issue an order for fear of creating precisely such a scenario."
The experts agreed that, while Mr. Khadr's lawyers can now return to a Federal Court of Canada judge for an order demanding that the government seek Mr. Khadr's repatriation, there is a strong chance that the Supreme Court would not ultimately uphold it.
Sujit Choudhry, another University of Toronto law professor, said Mr. Khadr may be wiser to pursue a civil damages claim against the government, armed with the Supreme Court's ruling and the government's refusal to act.
"That kind of damage award becomes an occasion to exert some pressure on the government," he said. "That is becoming a strategy in these cases of Canadian complicity in abuses abroad."
Prof. Roach said U.S. authorities could also resolve the standoff by agreeing not to use the information from the illegal interrogations in prosecuting Mr. Khadr - effectively eliminating the ongoing violation of his Charter rights.Report Typo/Error
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