Let me throw out a hypothetical: In some future year, in some far away country, a war has broken out. In that war, atrocities are being carried out. Torture, rape, genocide - all are known to be taking place. In that hypothetical country, there are known to reside hundreds, if not thousands of Canadian citizens. Some of them are there providing aid, others are dual citizens who have chosen to live abroad - many of whom, it is known, are victims of these crimes that are in clear violation of international law and any standard of human rights. As with many war zones, the country's borders have been sealed; no one can leave.
The Canadian government writes a strongly worded letter demanding that all Canadians be allowed to leave. The country ignores the letter.
The Canadian government brings a resolution to the United Nations demanding an end to the war and that all Canadians be permitted to leave. The country ignores the UN resolution.
My question (and it is both a serious one and a question that I don't know the answer to): At what point, if the Omar Khadr standard is now the law of the land, has the government discharged its duty to protect the Charter rights of Canadians abroad?
In Khadr's case, the court has determined that a "request" is sufficient. But what if a "request" is turned down? How far should the government have to go to provide a remedy? Could a court demand that the government deploy military force to protect the Charter rights of Canadians?
That may seem absurd. But frankly, only a few years ago the notion that Canadian courts had any jurisdiction to dictate foreign policy to the executive branch would have been equally absurd.
I have absolutely no doubt that the government of Canada should demand that Omar Khadr be returned to Canada (and that it should have been years ago). I am far less certain that the government of Canada should have to make that same demand. I may disagree with the government on not making the request, but I do think it is a decision that the executive branch had the right to make.
The distinction, in my opinion, is far from trivial, and has potentially troubling consequences going forward. While lawyers may argue that the Khadr case has a unique fact scenario (the fact that Canadian agents were part of interviews where torture was believed to be used is an important factor in this decision), the precedent is now set and it is easy to envision fact scenarios such as the one I set out above expanding this precedent. Courts could be forced to decide whether they are the body that now sets Canadian foreign policy whenever the rights of Canadians are impacted - a swath of potential issues from intervening in wars to not signing international treaties to, well, just about any international issue in which the rights of a single Canadian are affected.
While it is easy to make a flippant joke that a random judge would be a better Foreign Affairs minister than some of our recent ministers, I'm not sure that's how we want to govern the country.
