Comment on Canada (Prime Minister) v. Khadr (2010)

Abstract

Omar Khadr is a Canadian citizen captured in 2002 at age 15 in Afghanistan by the US. He was detained thereafter at Bagram and at Guantanamo Bay. Canada sent intelligence officers to interrogate Omar at Guantanamo Bay on several occasions. The Canadian officials knew that Omar had been tortured by his US captors and was being detained in conditions that violated international human rights obligations in relation to Omar as in individual and as a minor. In 2010, the Supreme Court of Canada ruled that Canadian officials violated the constitutional rights of Omar Khadr, but declined to order an effective remedy. It specifically refused to order that Canada request his repatriation from Guantanamo Bay, despite acknowledging that repatriation would remedy the ongoing violations. The Court was also aware that every other western nation had successfully requested repatriation of its citizens (and even permanent residents) from Guantanamo Bay. I argue that the Supreme Court’s unwillingness to order an effective remedy is facilitated by a distorted characterization of the rights violation. The effect was to enable the Canadian government to deflect a claim that repatriation was the only remedy responsive to the violations. This judicial gambit enabled the government to comply with the Court’s stated expectation that the executive would take action in response to the Court’s declaration, while eliminating the possibility that the executive might have to do something that could actually vindicate Khadr’s rights. The Court's judgment preserved the veneer of the rule of law, with none of the content.