Khadr
Continued From Page 1
exhausted all possible remedies.”
Khadr’s counsel, Nathan Whit-
ling of Edmonton’s Parlee McLaws,
told The Lawyers Weekly the deci-
sion is a reminder to governments
that the Charter is supreme—even
when the executive’s broad discre-
tion over the conduct of foreign
affairs is involved.
“The court is
going to be very,
very reluctant to
intrude into [the
executive’s royal
prerogative over
foreign affairs]
and clearly the
courts do have a
high degree of
deference when it comes to these
types of decisions and aren’t going
to be interfering lightly,” explained
Whitling. “But ultimately, at the
end of the day, it’s the Charter that
governs and the executive has to
respect it and [courts’] patience is
not infinite. There comes a point
where the court eventually does
have to intrude, and I think the
Supreme Court said as much [in its
Khadr II declaratory ruling]…six
months ago.”
At press time, Ottawa had not
yet commented on the ruling or
announced whether it would
appeal.
But Whitling predicted the government would request Khadr’s
return. “I don’t think they have
Whitling
much choice any more and I think
this judgment gives them all the
political cover they need to make
the request,” he remarked. “They
can now say: ‘We did everything we
could to resist helping out Omar
Khadr.’ ”
Whitling said his client has been
visited frequently by Canadian con-
sular officials and is not considered
by them to be dangerous. But if it
would facilitate his return to Can-
ada, Khadr would be open to dis-
cussing rehabilitative or other
measures, including agreeing to a
peace bond, Whitling said.
Justice Zinn emphasized that
if—after looking at the govern-
ment’s proposed list of rem-
edies—he was satisfied that the
only potential way to vindicate
Khadr’s Charter rights was to
seek his return “that order would
be issued.”
He noted “I have previously
stated that this is the only alterna-
tive remedy I can see that can
potentially cure the breach. It may
be, however, that Canada and/or
Mr. Khadr can fashion other
potential curative remedies. If
there are others, and keeping in
mind the ruling of the Supreme
Court in Khadr II, it is the role of
the executive, after providing Mr.
Khadr an opportunity to be heard,
to decide which of the alternative
potential curative remedies to
choose. It must continue that pro-
cess until Mr. Khadr is provided
with an effective remedy that vin-
dicates his rights.”
Justice Zinn instructed the gov-
ernment to advise him “of all
untried remedies that it maintains
would potentially cure or amelior-
ate” the Charter breaches deter-
mined by the Supreme Court in
Canada (Prime Minister) v. Khadr,
[2010] S.C. J. No. 3 (Khadr II).
Reasons: Khadr v. Canada, [2010] F.C.J.
No. 818.
We want to hear from you!
E-mail us at: tlw@lexisnexis.ca ;
Originally meant to get dangerous foreigners out of the country fast
Security
Continued From Page 3
disclosure is made [to the person
affected], while protecting
national security, and ensure that
the person who represents the
interests of the [affected] person
at the closed hearing is as fully
armed as possible,” he advises.
The constitutional crux of the
matter is giving the person
affected enough disclosure of the
government’s case to defend himself, Waldman says.
He argues the government’s
best chance of Charter-proofing
its anti-terror immigration meas-
ures is to adopt the approach suc-
cessfully used for many years by
the Security Intelligence Review
Committee (SIRC), which reviews
denials of security clearances by
the Canadian Security Intelli-
gence Service (CSIS). Security-
cleared SIRC lawyers—who are
sworn not to disclose privileged
information to the person who
has been denied a security clear-
ance — are otherwise permitted to
communicate freely with that per-
son in order to be able to
adequately represent the person’s
interests at the closed-door hear-
ing where the government’s secret
evidence is tendered. By contrast
SAs are permitted, at most, court-
authorized and court–supervised,
restricted communication with
the security certificate detainee’s
legal team. It’s not enough, experi-
enced SAs say.
“There is good reason
to believe that the
government will be
reluctant to use it.
Security certificates
are on life support.
that way. You have got to give
them due process.”
Judges’ constitutional vigilance
has caused the Harper govern-
ment to criticize the courts for
dragging out matters in security
certificate cases. But SAs say the
government has to shoulder much
of the blame.
“First of all they over-claim
their national security [privilege],
which raises all kinds of challenges
by the SAs,” notes Cavalluzzo.
“We’re constantly battling them on
that,…which prolongs the event.”
Secondly the legislative gag
imposed on SAs’ communication
with the named persons’ defence
teams is unworkable, he says. “We
are constantly fighting over that
because we want to discuss the
situation with the individual.”
Cases have also been unneces-
sarily prolonged because the
Federal Court has discovered,
with the assistance of the SAs,
that CSIS has “not been totally
candid” about the veracity of its
sources and in disclosing evi-
dence, Cavalluzzo notes. “If the
government shaped up, these
proceedings would not take
nearly as long.”
Copeland also says the govern-
ment and CSIS don’t seem to have
a sophisticated understanding of
the history or other political real-
ities of the foreign countries
involved in security certificate
cases. As one of Hassan Almrei’s
SAs, Copeland contributed to the
Federal Court quashing Almrei’s
security certificate because CSIS
failed to disclose key exculpatory
evidence. “My impression in Alm-
rei was that the government’s law-
yer and CSIS, at many points in
the proceeding, didn’t understand
what they were arguing,” Cope-
land observes. “They never really
woke up.”
Harkat’s public co-counsel,
Norm Boxall of Ottawa’s Bayne
Sellar Boxall, says there remains a
huge constitutional question
mark hanging over the security
certificate regime which was
struck down by the Supreme
Court in 2007, and then revised
with the addition of the SA regime
in 2008. The Federal Court is
expected to address constitutional
issues about the new scheme
when it renders its decision next
fall on reasonableness of Harkat’s
security certificate.
