Law Times

PAGE 2 NEWS November 23, 2009 • Law Times Top court faces high stakes in Khadr appeal BY TIM NAUMETZ For Law Times OTTAWA – It would be an "earthquake in the law" if the Supreme Court of Canada rules the Harper government must ask the United States to release Omar Khadr from custody in Guan- tanamo Bay, says one of Ottawa's leading experts on the top court. Eugene Meehan, a former executive legal offi cer at the top court and chair of the Supreme Court practice group at Lang Michener LLP in Ottawa, says a ruling that attempts to com- pel the government to seek Khadr's release would fracture the balance between the judi- ciary, the executive, and the legislative branches in Canada. "Th at means the judicial branch of the government is tell- ing another branch of govern- ment what it has to do, and if that is the case, then that is pos- sibly the beginning of the end of the separation of the three functions of our country, which is judiciary, executive, and Parlia- ment," says Meehan. "Th is would be the judiciary explicitly telling government to fulfi ll a particular function that was previously thought to be reserved only onto govern- ment," Meehan adds. "To use an understatement, [it would be] novel; a more realistic view would be that it would be an earthquake in the law." Another prominent lawyer in the capital, who was the federal government's counsel for the ju- dicial inquiry into Maher Arar's rendition by the United States and subsequent torture in Syria, also says such a decision would be a major precedent, radically expanding the government's duty to extend protection for citizens under s. 7 of the Char- ter of Rights and Freedoms. Barbara McIsaac, counsel at Borden Ladner Gervais LLP in Ottawa, says Khadr's lawyers are essentially asking the Su- preme Court to step beyond the bounds it has so far set on the life, liberty, and security of the person," says McIsaac. "What I will say is that the court, I would think, would want to be extremely careful in expanding what section 7 means because the implications could be very far-reaching. I'm not saying they won't do it but what I'm saying is that they want to be quite careful in what they are saying or how they extend it." Both lawyers spoke to Law A ruling forcing the government to request Omar Khadr's release would be an 'earthquake in law,' says Eugene Meehan. extent of remedies for Charter violations by government. "Th e parties [in Khadr] have engaged this question of wheth- er section 7 of the Charter im- poses a positive duty to protect, as opposed to saying the state cannot deprive somebody of Times shortly after the nine Su- preme Court justices heard the case in a packed courtroom, questioning counsel repeatedly as they listened to arguments over several hours. In the government's appeal of a Federal Court of Appeal deci- sion that upheld an earlier ruling by Federal Court Justice James O'Reilly, Justice Department lawyer Robert Frater summarized his client's arguments that the top court has no jurisdiction to inter- fere in the government's ability to conduct foreign relations. On the other side, Nathan Whitling from Parlee McLaws LLP in Edmonton represented Khadr in arguing that the gov- ernment not only has the duty to protect the former child soldier under the Charter but must also act proactively even though most of the Charter violations were committed by a foreign government. Khadr's legal team says Cana- dian Security Intelligence Ser- vice agents also violated Khadr's s. 7 rights because they knew when they interviewed him at Guantanamo Bay in 2003 that he had been subjected to sleep deprivation but nonetheless passed the information they ob- tained to the FBI. By that time, Khadr, a Ca- nadian-born citizen who was detained at the age of 15 in Af- ghanistan following a gun battle with U.S. soldiers, had been in the American detention centre in Cuba for a year. He had been captured by U.S. forces after be- ing severely wounded in the fi re- fi ght and was accused of killing a U.S. army medic with a grenade minutes after the battle ended. Ten interveners lined up for 10-minute briefs to the Su- preme Court justices, who sat through a normal lunch break to conclude the hearing almost without interruption. Interveners included the Ca- Starting from $62.50 per month More value for your money! 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Please provide your name, address and contact number and send all letters to: Law Times Law Times, 240 Edward St., Aurora, ON • L4G 3S9 or e-mail us at 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. www.lawtimesnews.com Bestcase-reduce costs (LT 1-2x4).indd 1 LT0715 6/10/09 10:43:32 AM lawtimes@clbmedia.ca, or fax to 905-727-0017 nadian Bar Association, repre- sented by high-profi le human rights lawyer Lorne Waldman; and the Canadian Civil Liber- ties Association, represented by Marlys Edwardh, another well- known human rights lawyer who, along with Waldman, rep- resented Arar at the inquiry into his rendition and torture. McIsaac says her concern about the high stakes involved in the Supreme Court ruling, expected possibly by January, shouldn't be interpreted as ap- proval of how Khadr has been treated by the Americans or the Canadian government's refusal since 2002 to insist on his release and repatriation to Canada. "Whether the government has the legal right to make the decision to refuse to intervene, that is the wrong decision from a policy and humanitarian point of view," she says. "To stand by while another government violates the rule of law, particu- larly when a Canadian citizen is involved, is not right." LT

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