Alejandro Manevich on Canadian Courts and Khadrs

I thought your readers may be interested in this morning's order by the Supreme Court of Canada denying leave to appeal in United States v. Khadr, in which the U.S. had been seeking the extradition from Canada of Abdullah Khadr (older brother of Omar, currently a guest at Gitmo).  The action leaves standing the Ontario Court of Appeal's unanimous decision from May, which denied the U.S.'s extradition request on the basis of the U.S.'s misconduct in procuring Khadr's detention in Pakistan, and collaborating in his mistreatment and deprivation of consular access.  The first few paragraphs of the appeals court's decision pretty much sum it up.   Even without taking any view on the merits of the dispute, it's hard not to see this as chickens coming home to roost, at least to a certain extent. The Bush Administration, in particular, was often perceived (at least outside the U.S.) as having adopted an attitude of not caring what the rest of the world thought of the tactics it believed were needed to safeguard American interests. It is not so surprising, then, that the rest of the world did not emerge from the experience willing to give the U.S. the benefit of the doubt when it asks for help in carrying out such policies. The Court of Appeal even cited recent U.S. Supreme Court decisions (Hamdi and Boumediene) in support of its conclusion that "the rule of law must prevail even in the face of the dreadful threat of terrorism ... For if we do not, in the longer term, the enemies of democracy and the rule of law will have succeeded" (at paras. 74, 76).  Ouch. By judicial standards, that looks close to adding insult to injury.   There's a lot here reminiscent of the 2010 decision of the Supreme Court of Canada regarding Omar Khadr, the Gitmo resident. In that case, the Court came within millimetres of ordering the Canadian Government to demand Khadr's repatriation, notwithstanding the very limited scope of judicial oversight of the executive's power over foreign relations, because of the Canadian government's collaboration in serious breaches of Khadr's rights. There's been much talk recently that Omar Khadr will soon be transferred back to Canada to serve the remainder of his sentence. It will be interesting to see how Canadian courts respond should Khadr try to challenge his guilty plea, for example on grounds of coercion. I don't claim expertise on the Canadian law in that area, but given how our courts have responded so far, I would hesitate to bet against him.