A standoff between the Supreme Court of Canada and the federal government over the repatriation of Omar Khadr has thrust the country into uncharted constitutional waters.
In a 9-0 ruling, the court effectively dared the Harper government to ignore its finding that Canada and the United States are violating Mr. Khadr's right to life, liberty and security under the Charter of Rights and Freedoms.
The court denounced the use of sleep deprivation by his U.S. captors to soften up Mr. Khadr when he was a 15-year-old prisoner, and the government's participation in his interrogation, but stopped short of ordering the government to ask the U.S. to send him home.
It found that the rights violation continues because information obtained during illegal interrogations in 2003 and 2004 is still liable to be used against Mr. Khadr in U.S proceedings.
A government is expected to take action when the court rules it has violated someone's rights. The remedy requested by lawyers who brought the case to court on Mr. Khadr's behalf is that Ottawa bring their client home for trial. Past governments have not ignored strong declarations from the highest court in the land.
Yet a statement from Justice Minister Rob Nicholson Friday raised the possibility that the Harper government will refuse to act or that it will give a token response.
"The government is pleased that the Supreme Court has recognized the 'constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canada's broader interests,' " Mr. Nicholson said.
He emphasized the gravity of the allegations against Mr. Khadr and noted that the Supreme Court overturned two lower court decisions by finding that the government is not required to ask for Mr. Khadr's return from the U.S. prison at Guantanamo Bay.
In an interview Friday, University of Toronto law professor Sujit Choudhry said the clash of court and government has reached historic proportions.
"It has taken the court where it has never gone before - into the legal black hole of Guantanamo Bay, and the murky world of security and intelligence co-operation between Canada and other countries in the post 9/11 world," he said. "It has now thrown the issue back to the federal government, which must now act in compliance with the Charter," Prof. Choudhry said.
He predicted that Mr. Khadr's lawyers will bring another court challenge if Ottawa leaves their client in U.S. hands.
Allan Hutchison, a law professor at York University's Osgoode Hall Law School, agreed that Mr. Khadr will have quick recourse if the Harper government flouts the Supreme Court's declaration.
"The Khadr people must use all available methods to shame the government into following a constitutionally sanctioned course of action," he said.
The court refrained from issuing a direct order to repatriate Mr. Khadr, reasoning that the fluid state of terrorism proceedings dictates a cautious approach. It said that government officials have a much broader and more nuanced sense of foreign policy considerations and the details of Mr. Khadr's case.
But the court showed that a legal fist lies beneath its velvet glove. If the abuse of Mr. Khadr's rights is proven to be continuing, it warned that, "courts are empowered to make orders ensuring that the government's foreign affairs prerogative is exercised in accordance with the constitution."
Advocates for Mr. Khadr were disappointed Friday, but took encouragement from the clear finding of a continuing rights violation.
The judges could scarcely have been tougher in their finding that Mr. Khadr was mistreated during interrogations in 2003 and 2004.
"Canadian officials questioned Mr. Khadr on matters that may have provided important evidence relating to his criminal proceedings, in circumstances where they knew that Mr. Khadr was being indefinitely detained, was a young person, and was alone during the interrogations," they said.
"Interrogation of a youth to elicit statements about the most serious criminal charges - while detained in these conditions and without access to counsel and while knowing the fruits of the interrogations would be shared with the U.S. prosecutors - offends the most basic Canadian standards about the treatment of detained youth suspects."
Since the information obtained in the interrogation sessions could still be used against Mr. Khadr in U.S proceedings, the court said, "the effect of the breaches cannot be said to have been spent."
Mr. Khadr was severely wounded in a 2002 skirmish in which he is alleged to have thrown a grenade that killed a U.S. Special Forces medic. He was charged with murder and scheduled to go before a Guantanamo Bay military commission.
However, U.S. President Barack Obama effectively shut down the commission system this year. Mr. Khadr remains in Guantanamo.
Federal Court Judge James O'Reilly ruled last year that Canada was complicit in torture that included sleep deprivation and the use of a vicious dog.
The Federal Court of Appeal upheld the ruling by 2-1.
At the Supreme Court hearing in November, federal officials warned the judiciary not to create a foreign-policy nightmare by micromanaging sensitive situations abroad involving Canadians.
"The government has the right to decide what requests should be made, how they should be made, and when they should be made," federal lawyer Robert Frater said. "The courts are not in the best position to do that."
While Mr. Khadr faces life in prison if convicted, most legal observers believe that he would go free based on time already served if the Harper government agrees to bring him home for trial.
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