Noteworthy

Of course it speaks poorly of the Cons that they've been misleading Canadians about their participation in Omar Khadr's plea agreement. But the more substantial issue looks to me to involve how little they can be trusted in the future.

Here's the background to the plea deal:

"On behalf of the Government of the United States of America, the Department of State brings to the attention of the Government of Canada Mr. Khadr's agreement to plead guilty to all charges against him," the note said.

"The plea agreement includes various undertakings and conditions, including that duly authorized officials of the United States and Canada exchange diplomatic notes reflecting United States and Canadian Government support for [his] transfer to Canada to serve the remainder of [his] approved sentence after completing no less than one additional year in United States custody … "
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In response, the Canadian Embassy conveyed in a note that Canada acknowledged receipt of the State Department's note, that it took note of Khadr's deal to plead guilty to all charges against him and that it shared the U.S.'s view that were Khadr to request a transfer to Canada, such a transfer could be made under the Treaty between Canada and the United States on the Execution of Penal Sentences.

"The Government of Canada is inclined to favourably consider Mr. Khadr's application to be transferred to Canada to serve the remainder of his sentence or such portion of the remainder of his sentence as the national Parole Board determines …."

Which looks to me to raise the question of whether the diplomatic notes are actually seen as remotely binding - or whether they'll simply be ignored as much as Khadr's rights as a Canadian citizen have been during his entire stay in Guantanamo. And if the Cons are in a position to change their mind about "favourably considering" Khadr's application once it's officially made, then it's possible that Canada's negligence and embarrassment in dealing with its nationals abroad may be far from over.

Simple answers to questions that wouldn't have been asked by anybody paying a modicum of attention

The National Post's latest editorial on Omar Khadr contains this embarrassing bit of shoddy research:

In many cases, the treatment of different suspects has been wildly inconsistent. Why, for instance, has Mr. Khadr been kept at Gitmo for eight years, while many badder apples were repatriated to Britain, Saudi Arabia and Yemen long ago?

That would be because their home countries bothered to request their return. This has been another version of simple answers to simple-minded questions.

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.

On declarations

There's been a massive outpouring of criticism over the Supreme Court's latest Khadr ruling. And while it's probably not entirely accurate to say that the Supreme Court has decreed that courts can't ever make an order which will result in an effective remedy in a case such as Khadr's, the practical upshot of the decision in this particular case (and with a government that couldn't care less whether it keeps violating Khadr's rights) is effectively to limit the courts to offering suggestions to a government which has already said it isn't interested in listening.

That said, I'd hate for the Supreme Court's justified criticism of the government actions - Lib and Con alike - which violated Khadr's Charter rights to get lost in the fact that it failed to make an order with practical effect. So let's make sure that the following parts of the judgment are what get remembered in the long run:

[21] An applicant for a Charter remedy must prove a Charter violation on a balance of probabilities (R. v. Collins, [1987] 1 S.C.R. 265, at p. 277). It is reasonable to infer from the uncontradicted evidence before us that the statements taken by Canadian officials are contributing to the continued detention of Mr. Khadr, thereby impacting his liberty and security interests. In the absence of any evidence to the contrary (or disclaimer rebutting this inference), we conclude on the record before us that Canada’s active participation in what was at the time an illegal regime has contributed and continues to contribute to Mr. Khadr’s current detention, which is the subject of his current claim. The causal connection demanded by Suresh between Canadian conduct and the deprivation of liberty and security of person is established.
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[24] We conclude that Canadian conduct in connection with Mr. Khadr’s case did not conform to the principles of fundamental justice. That conduct may be briefly reviewed. The statements taken by CSIS and DFAIT were obtained through participation in a regime which was known at the time to have refused detainees the right to challenge the legality of detention by way of habeas corpus. It was also known that Mr. Khadr was 16 years old at the time and that he had not had access to counsel or to any adult who had his best interests in mind. As held by this Court in Khadr 2008, Canada’s participation in the illegal process in place at Guantanamo Bay clearly violated Canada’s binding international obligations...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. Further, the March 2004 interview, where Mr. Khadr refused to answer questions, was conducted knowing that Mr. Khadr had been subjected to three weeks of scheduled sleep deprivation, a measure described by the U.S. Military Commission in Jawad as designed to “make [detainees] more compliant and break down their resistance to interrogation” (para. 4).

[25] This conduct establishes Canadian participation in state conduct that violates the principles of fundamental justice. 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 that 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.
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[30] An appropriate and just remedy is “one that meaningfully vindicates the rights and freedoms of the claimants”: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 55. The first hurdle facing Mr. Khadr, therefore, is to establish a sufficient connection between the breaches of s. 7 that occurred in 2003 and 2004 and the order sought in these judicial review proceedings. In our view, the sufficiency of this connection is established by the continuing effect of these breaches into the present. Mr. Khadr’s Charter rights were breached when Canadian officials contributed to his detention by virtue of their interrogations at Guantanamo Bay knowing Mr. Khadr was a youth, did not have access to legal counsel or habeas corpus at that time and, at the time of the interview in March 2004, had been subjected to improper treatment by the U.S. authorities. As the information obtained by Canadian officials during the course of their interrogations may be used in the U.S. proceedings against Mr. Khadr, the effect of the breaches cannot be said to have been spent. It continues to this day. As discussed earlier, the material that Canadian officials gathered and turned over to the U.S. military authorities may form part of the case upon which he is currently being held. The evidence before us suggests that the material produced was relevant and useful. There has been no suggestion that it does not form part of the case against Mr. Khadr or that it will not be put forward at his ultimate trial. We therefore find that the breach of Mr. Khadr’s s. 7 Charter rights remains ongoing and that the remedy sought could potentially vindicate those rights.

[31] The acts that perpetrated the Charter breaches relied on in this appeal lie in the past. But their impact on Mr. Khadr’s liberty and security continue to this day and may redound into the future. The impact of the breaches is thus perpetuated into the present. When past acts violate present liberties, a present remedy may be required.
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[48] The appeal is allowed in part. Mr. Khadr’s application for judicial review is allowed in part. This Court declares that through the conduct of Canadian officials in the course of interrogations in 2003-2004, as established on the evidence before us, Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice.

Scary thought for the day

From Lawrence Cannon:

Mr. Wayne Marston (Hamilton East—Stoney Creek, NDP):

Mr. Speaker, every other country that had nationals in Guantanamo fulfilled their basic obligations and got them out, every country but Canada.

Lieutenant Commander Bill Kuebler says that attempts over the past year and a half to speak to senior officials at the Prime Minister's office or in the Department of Justice or the Department of Public Safety have met with the same closed door. This is no way to treat a Canadian.

Will the Prime Minister commit today to raise the issue of Omar Khadr when he meets with President Obama next week?

Hon. Lawrence Cannon (Minister of Foreign Affairs, CPC):

Mr. Speaker, officials in my department have carried out regular discussions with both the defence and the prosecution in this case. I also want to point out that consular services have been offered to this individual. He is being treated as any other Canadian citizen in detention would be treated.

Now, it seems fairly obvious that Cannon is far off base. But considering the lengths the Cons have gone to in refusing to assist Khadr, how damning would his claim be if it's true?