All Hail to the Jean: Governor General Reportedly Intervenes for Khadr

The Globe and Mail and Toronto Star have recently commented on reports that Governor General Michaëlle Jean advised the Prime Minister to repatriate Omar Khadr. The original story appeared in La Presse on September 26, 2008.

It must be emphasized that the veracity of these reports remains to be seen. However, if true, they raise several questions: does Ms. Jean have the constitutional authority, as our impartial head of state, to intervene on Mr. Khadr’s behalf? How is this related to the Supreme Court of Canada (“SCC”) decision in Canada (Justice) v Khadr, [2008] 2 SCR 125 from this past March? Will the Governor General’s intervention ultimately lead to Khadr’s repatriation?

The Harper-Jean Meeting

La Presse reported that before the current election was called the Governor General met with Prime Minister Harper and requested that the he repatriate Omar Khadr. The newspaper speculated that the meeting came shortly after the public release of videos of the interrogation of Mr. Khadr by unsympathetic CSIS officals inside the Guantanamo prison six years after his capture. Harper reportedly said that his caucus and party base would never accept Khadr’s repatriation, even though he was not entirely against an eventual return. The Prime Minister has since denied taking this position.

According to La Presse, the Governor General’s intervention was not made flippantly. The paper stated Michaëlle Jean and her husband Jean-Daniel Lafond, a Quebec filmmaker, consulted with experts in constitutional and international law. Their conclusion was that the government must bring Khadr home to comply with the Charter and our international legal obligations. Interestingly, this information surfaced days after Mr. Lafond told the Globe and Mail that “its very safe for a politician to destroy culture” in response to the Harper government’s recent cuts to arts funding.

An Abuse of Office?

Would this alleged intervention constitute an abuse of Ms. Jean’s office? Some experts say no. The Globe cited Walter Bagehot, a British Constitutional scholar, who said that “The sovereign has, under a constitutional monarchy such as ours, three rights – the right to be consulted, the right to encourage, the right to warn.” Some Canadians would be surprised to learn Governor General Michaëlle Jean is the representative of our head of state. Her office is intended to be non-partisan and Ms. Jean performs primarily ceremonial functions.

In the past, there were regular meetings between the Prime Minister and Governor General regarding government affairs. In recent times, however, these meetings have been largely reduced to speeches from the throne and biannual requests by the Prime Minister to dissolve a dysfunctional government. Some would say that the Governor General plays an important role as an impartial representative of our head of state and a counterweight to the partisan House of Commons and Senate. Others argue Rideau Hall is a relic of our colonial past and call for an elected head of state. Critics of the Governor General will be perhaps emboldened by her decision to intervene in a political matter.

But with so much speculation, lets turn to some facts.

A Canadian Citizen at Guantanamo Bay

TheCourt.ca has followed the Khadr situation closely and a recent post from our Editor in Chief summarized the key facts as follows:

By this point the story of Omar Khadr is well known to Canadians. Khadr, a Canadian citizen, was taken prisoner by American forces in Afghanistan on July 27, 2002. He was fifteen at the time. His arrest followed a battle with American forces. Khadr was transported to Guantanamo Bay, Cuba where he has been charged with a number of offences that were to be tried before a U.S. Military Commission. The principal charge against him is murder. The U.S. alleges that near the end of the firefight that preceded his capture, Khadr threw a grenade which killed an American soldier.

The Khadr case was heard at the SCC in March 2008. The main issue was Mr. Khadr’s access to records from Canadian officials who interviewed him and provided this information to U.S. authorities. In a broader sense however, the case was about a Canadian citizen’s right to information in his government’s possession, which may help him defend charges levied by another government. Khadr was partially successful in establishing a duty to disclose under s. 7 of the Charter. The SCC decision provided Khadr with access to records but not all information relevant to the charges against him. The balancing of national security and other considerations had a significant effect on the extent of the disclosure afforded to Mr. Khadr.

By no means, however, was the Khadr decision from the SCC an unqualified call for his repatriation. Rather, the decision established Khadr’s right to disclosure of information given to U.S. authorities as a direct consequence of conducting the interviews. It remains up to the Federal government to negotiate Khadr’s release from Guantanamo Bay.

The Government’s Response

Could Ms. Jean’s reported intervention sway the government’s position on the Khadr file? It would appear not. When questioned about this story recently Harper told reporters “this story is false. My position on Mr. Khadr is clear. He is charged with very serious crimes and we believe that he should face trial on those charges.” This is consistent with the official federal government position that Canada should allow the American courts to decide Mr. Khadr’s fate.

It has been some time now since leaders of other western countries acted to repatriate their citizens detained at Guantanamo Bay. In fact, Mr. Khadr is the only citizen of a Western country left in the prison. Ironically the effect of Ms. Jean’s reported intervention could be even frostier relations between Rideau Hall and 24 Sussex Drive, while Mr. Khadr continues to languish at Guantanamo.