As Omar Khadr’s August trial date approaches, his Edmonton lawyers Dennis Edney and Nathan Whitling have applied for judicial review of the government’s actions following the Supreme Court ruling in January 2010 in Khadr v. Canada.
As readers of these pages will recall, the Supreme Court found that Canadian conduct in this case had violated the principles of fundamental justice, but the Court declined to expressly order the government to seek Mr. Khadr’s repatriation out of concern about overstepping the powers of the executive. It cited evidentiary concerns, the “limitations of the Court’s institutional competence”, and the separation of powers as the basis for the Court’s ruling in favor of declaratory relief.
The government of Canada was thus faced with a Supreme Court judgment that affirmed that it had violated the constitutional rights of one of its citizens, but the government’s only response was to send a diplomatic note to the U.S. requesting that the information collected from Mr. Khadr be disregarded. (We, of course, have maintained that sending a demarche cannot cure the violation of Mr. Khadr’s constitutional rights.)
Mssrs. Edney and Whitling have proceeded to the Federal Court to request a judicial review of the government’s action and whether it was an appropriate response to the Supreme Court’s ruling. As the Ottawa Citizen reports, they have expressed particular concern about the absence of impartiality exercised by the government in handling Mr. Khadr’s case: in refusing to repatriate Mr. Khadr, the government did not appear to engage with the Supreme Court ruling “with an open mind.” Mssrs. Edney and Whitling have also stated that their client was not consulted as to alternative remedies, a basic procedural right.
The request for review is particularly timely in light of the fact that the diplomatic note issued by Minister Rob Nicholson has landed in the hands of a military judge in Guantanamo who is apparently disregarding it. This effectively renders moot Canada’s so-called remedial action, leaving the breach of Mr. Khadr’s constitutional rights ongoing and unremedied.
UPDATE: Maher Arar’s online magazine, Prism, is featuring an online broadcast of an interview with Dennis Edney and Amnesty International’s Alex Neve, discussing Mr. Khadr’s case.