Unappealing options

For those wondering what might happen based on the Cons' predictable refusal to do anything to correct the ongoing Charter violations against Omar Khadr recognized by the Supreme Court of Canada, there are a couple of possible options. But I wouldn't count on either of them coming to fruition.

If the goal is to have the Supreme Court revisit its decision immediately in light of the Cons' refusal to act, the Rules of the Supreme Court of Canada allow for an appeal to be re-heard on an application made within 30 days of a judgment. But a re-hearing is only granted if the Supreme Court concludes that it "misled itself or was misled as regards what was the record before it, the nature of the issues, or the questions to be addressed" (Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 2 S.C.R. 167). And while it seems clear that the Supreme Court's implicit assumptions about the federal government being interested enough in the constitutionality of its actions to rectify an identified and ongoing Charter breach have been proven wrong, it's hard to see how that risk wouldn't have been before the Court in light of the Cons' previous treatment of Khadr.

Moreover, the Cons's stance that they're still "reviewing" the decision leaves the door open to the theoretical possibility that they might take action in response to the decision - no matter how obvious it is to any observer that they won't do so. And I'd fully expect them to drag out any firm statement until after the normal reconsideration period has expired.

Assuming Khadr can't win a re-hearing, his other option will be to start again with an application to the Federal Court - this time with the Supreme Court's decision serving as a direct precedent on the court's authority to make any binding orders. And ss I've noted, the decision at least allows for the possibility that such an order could be justified. But I wouldn't bank on a lower court being willing to declare that circumstances have changed substantially since the Supreme Court's decision - or on the Cons actually following through even if an order requiring them to act in a manner consistent with Khadr's Charter rights survives the appeal process.

Update: Dr. Dawg has more.