Friday, May 23, 2008

Bravo to the Supreme Court

A welcome check has been placed on the Harper government's policy on Gitmo: "Ottawa ordered to give Khadr interrogation documents."
The Supreme Court of Canada has ordered the federal government to hand over information to alleged terrorist Omar Khadr that it gleaned from interrogation sessions that Canadian agents held with him in 2003.

Now 21, Mr. Khadr's U. S. war-crimes trial is scheduled to begin later this year. His lawyers are seeking the material in order to prepare his defence.

The 9-0 decision – signed simply "by the Court" – said that Mr. Khadr is entitled to any records of the interviews, regardless of what form they are in. It stated that he must also be given any information that Canadian authorities have given to their US counterparts as a direct consequence of conducting the interviews.
While Khadr's lawyers are concerned the ruling doesn't go far enough, to include a U.S. military report on the battle in which Khadr was involved in Afghanistan, the judgment is being well-received and supported as ground-breaking in the Canadian legal community.

What's being heralded is the judgment of the court, unanimous, that "...Canada cannot be complicit in violations of international law." As this lawyer states:
"The Supreme Court of Canada has unanimously upheld that the Charter applies to the conduct of Canadian officials acting outside of Canada when they participate in the processes of a foreign government – here, the U.S. – that is in violation of international law."

He said this "is an extremely important point of constitutional principle with broad ramifications. The federal government has recently argued that the Charter does not apply to Canadian armed forces operating in Afghanistan, a view accepted by the Federal Court of Canada. That decision is now clearly incorrect.

Mr. Arvay added that the ruling "killed two nasty birds with one carefully aimed stone" – the violation of both Mr. Khadr's rights and those of Afghan detainees.
The judgment is here.

This is one of those days when you feel especially proud to be Canadian, to have the calibre of court we do that will stand up to the anti-rule of law Bush administration by saying to the world, no, Canadian courts will not stand by while a citizens' human rights are being violated.

The court pinned its decision on international agreements to which Canada is a signatory, and on the fact that the U.S. Supreme Court has already found the Guantanamo Bay legal processes "to violate U.S. domestic law and international human rights obligations to which Canada subscribes.

"With Khadr's present and future liberty at stake, Canada is bound by the principles of fundamental justice and is under a duty of disclosure pursuant to s. 7 of the Charter," the court said, in its 9-0 ruling. "The content of this duty is defined by the nature of Canada's participation in the process that violated its international human rights obligations.

"In the present circumstances, this duty requires Canada to disclose to Khadr records of the interviews conducted by Canadian officials with him, and information given to U.S. authorities as a direct consequence of conducting the interviews, subject to claims for privilege and public interest immunity," it said.

"Since unredacted copies of all documents, records and other materials in the appellants' possession which might be relevant to the charges against Khadr have already been produced to a designated judge of the Federal Court, the judge will now review the material, receive submissions from the parties and decide which documents fall within the scope of the disclosure obligation."

The right wing Canadian government, kowtowing to the Bush administration, has been officially and significantly slapped back.

Well done.