University of Toronto Law School Faculty Blog

The Significance of Khadr - Part II

In my previous post, I talked about the new ground broken by Khadr.  In this post, I want to identify and offer preliminary reflections on some important questions raised by the judgment.  First, though, full disclosure: I was counsel for the British Columbia Civil Liberties Association in the appeal.  Second, a disclaimer: these views are strictly my own.

To recall, in my last post, I wrote

Suresh established what we termed the “doctrine of constitutional complicity”, which holds that Canada is constitutionally liable for human rights abuses committed by foreign states which occur outside of Canada when (a) such abuses would violate the Charter had they occurred in Canada at the hands of the Canadian government; and (b) Canada has been complicit in the human rights abuses of the foreign state.

In fact, Suresh built upon and extended two previous decisions, Burns and Singh which held that Canada would be constitutionally liable for extradition to face the death penalty (Burns), and the denial of entry to Canada which would potentially expose someone to a deprivation of  their security of the person (Singh).  As these three cases make clear, the textual home for this doctrine has been s. 7 of the Charter (although it need not be).  Thus, in every case, the question has been whether the human rights abuse would violate s. 7 if committed by Canada within Canada.  And as I mentioned earlier, the Court has looked to international human rights law as a source of the principles of fundamental justice, to determine when such violations have occurred.

The Significance of Khadr: Part I

Posted by: Sujit Choudhry, Scholl Chair, Faculty of Law

Khadr is a highly significant judgment, for a number of different reasons.  For Omar Khadr himself, the Court held that he has a constitutional right to the disclosure of the interrogations conducted by Canadian officials in Guantanamo Bay, some or all of which were shared with American authorities.  For the international campaign to close Guantanamo Bay, the Supreme Court has added its voice to the chorus of informed legal opinion in stating that the regime in Guantanamo Bay – at least at the time of the interrogations – violated the Geneva Conventions, which guarantee fundamental human rights to armed combatants.

But the judgment is potentially of much wider significance. Khadr is the latest in a line of cases in which the Court has been asked to set out the precise application of the Charter in situations where Canada cooperates with foreign governments in the national security context.  Canada works with foreign governments in different ways.  For example, it may share intelligence, which foreign governments may then act upon to arrest, detain, interrogate and even torture an individual – as tragically occurred in the case of Maher Arar.  In other situations, Canadian officials may themselves be abroad – such as the CSIS officers who interrogated Omar Khadr in Guantanamo Bay, or Canadian armed forces in Afghanistan.  Canada may also cooperate with foreign governments through extradition and deportation.

Getting on like a house on fire – Bali style

There is something surreal about the current climate talks in Bali. Think about it this way…

Life is good in the penthouse suites.  The open and airy lofts boast the latest in sleek Italian furniture, the ultimate in German kitchen design, and screening rooms with state of the art plasma screens and surround sound systems.

Money is no object. The owners are, well, “financially comfortable” (some would say plain rich).  They enjoy the best wines from around the world, champagne from France, beef from Japan (sometimes Argentina), caviar from Russia and bottled mineral water from the finest springs.

Only one thing is puzzling about the penthouse suites. The blinds are drawn. And the air-conditioning is running in the winter.  Delivery staff rushes in and out, leaving sooty clothes and oxygen tanks at the door.  Because, you see, there is trouble in penthouse paradise. It sits atop a building that is now surrounded by fire and is beginning to smolder.

The Bali Challenge: How to get a global climate deal, and fast?

According to UN secretary-general, Ban Ki- Moon, the most recent findings of the Intergovernmental Panel on Climate Change (IPCC) suggest that the impacts of climate change will be “so severe and so sweeping that only urgent, global action will do.”

The challenge at the pending UN meetings in Bali will be to set the tracks for just that: a regime that includes all major greenhouse gas (ghg) emitters and imposes meaningful emission reduction targets on them.

Canada’s Environment Minister, John Baird, has called the IPCC findings “powerful” and “overwhelming.”  Assuming, then, that Canada’s goal is to promote urgent and global action, what of its negotiating strategy for Bali?

Why has Canada changed its tune on citizens facing the death penalty?

This commentary was first published in The Lawyers Weekly on November 16, 2007, page 17

Ronald Smith of Red Deer, Alberta is slated to die the same way that Stanley Faulder of Jasper, Alberta did in 1999: by lethal injection. It can be a cruel death, leaving people gasping for air and writhing in pain while jailhouse “doctors” try to hit a vein with the poisoned needle. Observers at the 1994 execution of killer John Wayne Gacey in Illinois told reporters that the person who inserted the tube in his arm appeared to have “never taken I.V. 101”.

The two Canadians also share another trait: brutality. Faulder murdered a 75 year old Texas woman by crushing her skull with a blackjack and then stabbing her with a kitchen knife, while Smith killed two young Native Americans in Montana by shooting them with a sawed-off shotgun at point blank range in the back of the head. Two cold Canadians whose confessions left little doubt as to the identity of the killers and horror of the crimes.

And yet with all the similarities, Canada has responded in starkly different ways. In Faulder’s case, the government turned interventionist, petitioning the U.S. courts and requesting clemency from the governor of Texas. By contrast, in Smith’s case, the government has turned isolationist, refusing to intervene in a judicial system that shares the same rule of law approach as Canada.

A Common but Differentiated Approach to Global Climate Policy: How not to Re-invent the Wheel

The world appears to have arrived, grudgingly in some cases, at a consensus that climate change is a serious environmental threat.  The global policy-making machine has slowly creaked into gear.  Indeed, various initiatives are now picking up speed on multiple tracks.

On track 1, discussions about new commitments to follow Kyoto post-2012 are taking place under the auspices of the 1992 UN Climate Convention.  On track 2, this year’s G8 Summit saw the leading industrialized states endorse the idea of 50% cuts in greenhouse gas emissions by 2050.  On track 3, the Asia-Pacific Climate Partnership, which Canada has now joined, is chugging along towards technological cooperation and an “aspirational” emissions target.  On track 4, US President Bush’s climate initiative wants to bring the 15 countries, including China and India, that emit 80% of global greenhouse gases on board.  Here too the destination is a “flexible” long-term target.

Torture and the Case of Syria

This morning’s news brings Maher Arar back to the front pages, this time with revelations that the Canadian Security Intelligence Service (CSIS), and not just the RCMP in collaboration with immigration and security authorities in the United States, had advance knowledge that he would be tortured. If true it is an important disclosure, and calls are rightly being made for an investigation of CSIS’ role in all of this. Indeed, this new angle on the Arar case harks back to accusations of CSIS involvement in the case of another Canadian, Muayyed Nurreddin, who claims that CSIS officials set him up to be abused abroad. Two other Canadians, Abdullah Almalki and Ahmad El Maati, have made similar accusations of collusion by Canadian government authorities in their arrests, interrogation, and torture. Each of these cases is slightly different and each points to different branches of security services on both sides of the Canada – U.S. border. Each one, of course, deserves independent investigation and a legal remedy for wrongs done to the individuals concerned.