Appeal Watch: The Khadr Tug-of-War, A Spring Election Bringing the Court Back This Summer and When a Trial is Conducted Unreasonably Late

They Don’t Want Him and Neither Do We: Omar Khadr’s Continuing Canadian Transfer Issues

The story of Omar Khadr, the Canadian who was captured by U.S. troops in Afghanistan in 2002 as a 15-year old boy, and subsequently accused of being a terrorist, is familiar to many Canadians by now. Equally resonant in the nation’s public consciousness is the long-winded battle that has been fought to have Khadr transferred from Guantanamo Bay, Cuba to a Canadian prison. TheCourt.ca has followed the legal proceedings surrounding Khadr over the years; posts can be found here, here, here and here, with further commentary also being available on the site. (We weren’t joking about being familiar with this story.)

Canada’s reluctance to claim ownership of Khadr, while being disinclined to allow a transfer request, is a stance that has been much criticized. From a legal perspective, lawyers on both the Canadian and American sides have expressed frustration with the Canadian government’s backtracking of its promise to transfer Khadr. Now, Khadr’s American lawyers have made a trip to Ottawa in order to appeal to the Canadian government in person; they seek to take Khadr back to the country. The American team has decided to speak publicly to the Canadian government’s processing delay, thereby making it clear that any bureaucratic hold-up could be blamed on us, not them. So, the Americans are making their irritation with Canada, and our inability to honour our initial agreement, quite clear.

Another concern that Canada has is the “Khadr effect,” which could have ramifications in the entire realm of international diplomacy. The phenomenon has simply been described as “the fear that sticking up for a Canadian citizen arrested in another country may come back to haunt the government.” Essentially, Canada needs to balance the credibility of the government with its commitment to its citizens. Canada is a global nation, one that has immigrants from every corner of the globe. Keeping the specific facts of Khadr’s case aside for a minute, the troubling reality is that the Canadian government seems increasingly comfortable claiming disownership of one of its own. After all, Khadr could be brought to justice in his own nation, rather than on foreign soil (and arguably in one of the most condemned prisons in the world) — if that were really the government’s primary concern.

A Spring Election Bringing the Court Back in the Summer

What could compel the Supreme Court of Canada (SCC) to take a break from their summer holiday to hear a single case on a hot July day? A question about the integrity of an election can compel such a thing. The judiciary’s role is to ensure democracy is upheld, and when it is questionable whether a riding’s MP was elected by the majority of voters, the SCC will reconvene.

In the 41st Canadian General Election, the riding of Etobicoke Centre was decided by a plurality of only 26 votes. Ted Opitz secured a narrow victory over former Liberal MP Borys Wrzesnewskyj.  Pursuant to s. 524(1)(b) of the Canada Election Act SC 2000, c. 9, which allows a candidate to contest an election on the grounds of irregularities affecting the outcome of an election, Wrzesnewskyj successfully challenged the legitimacy of the election.

Justice Lederer of the Ontario Superior Court held that the election in Etobicoke Centre was null and void on May 18th. While the judge did not suggest that there was any wrongdoing on the part of either Wrzesnewskyj or Opitz, there were issues in certain polls in the electoral district, which puts the legitimacy of 79 votes in question. Since the amount of invalidated votes was greater than the plurality, the election was deemed invalid.

There is nothing more important in a democracy than citizens being confident that their elected officials are indeed their elected officials. For many, it’s a relief to know that the SCC would take time away from their vacations to hear a case of the utmost importance. Even though Canada has a proud democratic legacy, our democracy remains delicate: 26 votes are sufficient to contest an election; and 79 are sufficient to throw out an election. We should be proud that the highest court recognizes that any doubt cast on our electoral system should be reexamined carefully. Happy Canada Day!

Supreme Court To Hear Case About a Trial Happening Within a Reasonable Time

Yesterday morning, the Supreme Court of Canada agreed to hear a case from Nova Scotia concerning Section 11(b) of the Charter. At the centre of the case is Ernest Fenwick MacIntosh, a man convicted of sexually abusing children ages 11 to 13. MacIntosh was convicted by the lower court, whose decision was subsequently overturned by the Court of Appeal of Nova Scotia. Their reason was that the case had taken too long to come to court, citing Section 11(b) of the Charter. Under Section 11(b), “any person charged with an offence has the right (b) to be tried within a reasonable time.”

In this case, it took thirty years before MacIntosh went to trial. The alleged wrongdoing took place in the 1970s. It would take 15 years for the allegations to surface (1985). It would take another 25 years for the trial to commence. All in all, 36 charges were laid on MacIntosh involving 6 victims. MacIntosh supposedly groped, fondled and performed oral sex on dozens of children ages 11 to 13. He contended, however, that he had consensual relations with them and that they were not in their early teens at the time. In 2010, he was convicted of 17 counts and sentenced to five-and-a-half years in jail. The Court of Appeal of Nova Scotia, comprising a three-judge panel, unanimously overturned the lower judge’s ruling, stating: “Applying the proper principles, and balancing the length of the delay with the explanation for it and the prejudice to the appellant and society’s interest in a trial on the merits, the delay was unreasonable.  Accordingly, the appellant’s right to be tried within a reasonable period of time was infringed” (R. v. MacIntosh, 2011 NSCA 111 at para. 178).

The Crown will need to answer some difficult questions if their case were to succeed at the Supreme Court next term. The most nagging question concerns why the government took so long to take action against MacIntosh. When the allegations first came out in 1985, MacIntosh was working as a telecommunications specialist in India. The police, however, were aware of his location. Only in 2006 did they try to extradite him back to Canada. In 2007, he was arrested in India and, two months later, arrived on Canadian soil. Especially since most of his complainants were children when the incidents supposedly took place, that twenty-year lag would have further hampered their recollection of events. So, it seems as though the Crown had tied its own hands in trying to bring MacIntosh to justice.