Canada v. Khadr: Technically The Right Ruling, But Realistically Not Right Enough

The Supreme Court’s decision in Canada v. Khadr, 2008 SCC 28, last week can best be described as “arms-length jurisprudence.” (A more detailed analysis of the decision from TheCourt.ca can be found here.) Although the Court found for Mr. Khadr, they did so in a manner that can only be described as tentative or even reluctant; the decision attempts to be as non-offensive to all parties as humanly possible. Even if Mr. Khadr’s case were not one that demanded greater intemperance – and it definitely is – the Supreme Court’s decision would still be unsatisfactory because of its willingness to abdicate Canadian moral and legal standards in the face of international convenience.For example, at para. 21, we find that “[i]ssues may arise about whether it is appropriate for a Canadian court to pronounce on the legality of the process at Guantanamo Bay under which Mr. Khadr was held at the time that Canadian officials participated in that process. We need not resolve those issues in this case.”

This is the most troubling aspect of the Supreme Court’s decision in Khadr: its willingness to rely on American jurisprudence to determine whether the occupation of Guantanamo Bay was illegal. Is this not nonsensical? The United States Supreme Court found in Hamdan v. Rumsfeld, 126. S. Ct 2749 (2006), that America’s procedural rules violated the Geneva Conventions. If Guantanamo Bay had been a Zimbabwean operation – Zimbabwe not being a signatory to the Geneva Conventions – are we to conclude that our Supreme Court would have found it legal? If Guantanamo had been a Chinese operation, are we expected to accept that China’s lack of enshrined habeas corpus rights would have made the events detailed in Rasul v. Bush, 542 U.S. 466 (2004), acceptable to Canadians?

Even if one considers these examples too hyperbolic, consider that neither Rasul v. Bush nor Hamdan v. Rumsfeld were particularly emphatic decisions by the U.S. Supreme Court; Rasul was a 5-3 decision and Hamdan a 6-3 decision. Given the highly politicized nature of the American judiciary, it may well be that only the continued good health of Justice Ginsburg and Justice Stevens (who significantly authored the majority decisions in both Rasul and Hamdan) in the last few years – both of advanced age, and both widely believed to be clinging to their seats to prevent dogmatic Republican appointees replacing them – prevented the decision turning the other way. If a slightly differently composed American Supreme Court had justified their federal government’s illegality in these cases, should we then expect our Supreme Court to toothlessly agree?

This line of thinking effectively conflates Canadian courts’ interpretation of international law with their American counterparts, and relies upon a diminished moral standard for Canadian action; the judgement of what is reasonable not by our own standard, but by the international equivalent of peer acceptance. (Indeed, the Court seems to recoil from this logic at para. 25, citing Canadian ratification of the Geneva Conventions and stating that “[i]t follows that participation in the Guantanamo Bay process which violates these international instruments would be contrary to Canada’s binding international obligations.”)

The Supreme Court follows its somewhat tepid determination of a violation of international law by further qualifying at para. 27 that violation of Canadian human rights obligations will typically require that assistance be tendered to a violative regime. Although the Supreme Court allows for the possibility that this not be the case, it fails to allow for how – and the obvious point to be made here is that deference of this sort – especially on an international level – amounts to tacit endorsement of that regime, or at the very least of that regime’s tactics, and in spirit if not letter thus a violation of Canada’s binding international obligations.

This distinction is especially important given the Court’s decision in para. 32 to restrict Canada’s disclosure obligation to information provided to U.S. authorities:

In this case, although Canada participated in the U.S. process by giving the product of its interviews with Mr. Khadr to U.S. authorities, it did not by virtue of that action step into the shoes of the U.S. prosecutors. The scope of the disclosure obligation in this context is defined by the nature of Canada’s participation in the foreign process. The crux of that participation was providing information to U.S. authorities in relation to a process which is contrary to Canada’s international human rights obligations. Thus, the scope of the disclosure obligation must be related to the information provided to U.S. authorities.

By taking this route, the Supreme Court is effectively washing Canada’s hands of the matter, all the more so when Khadr’s attorneys assert that only Canada can potentially deliver unto them required documents that the Supreme Court decided were not included within the bounds of disclosure. This is not a trifling matter; Khadr’s attorneys have asserted repeatedly (and produced evidence that would seemingly confirm) that the American government has doctored evidence against Khadr.

The level of deference shown by the Supreme Court to the American government and judiciary is disturbing. Where the Canadian government cannot be counted upon to defend the rights of Canadians abroad, it falls to the judiciary to force them to observe their Charter and international law obligations. Canada v. Khadr sets a standard that is simply too low; it demands nothing more than the bare minimum. We can do better.