CBRM and Khadr share a par­al­lel

Cape Breton Post - - COMMENT -

What would have hap­pened if the Cape Bre­ton Re­gional Mu­nic­i­pal­ity had won its con­sti­tu­tional case against the prov­ince? We’re about to find out, in a man­ner of speak­ing.

Last week the Supreme Court of Canada ruled 9-0 that Omar Khadr’s rights un­der the Cana­dian Con­sti­tu­tion and the prin­ci­ples of nat­u­ral jus­tice have been vi­o­lated, that Cana­dian emis­saries par­tic­i­pated in those vi­o­la­tions, and that the abuse of his rights is on­go­ing.

How­ever, in a clas­si­cally two-handed judg­ment, the court re­frained from telling the gov­ern­ment what to do about this. That, for now at least, is up to the gov­ern­ment.

In prin­ci­ple, this is what CBRM wanted from the courts be­fore its case died a le­gal death late last year. It wanted a dec­la­ra­tion that the Nova Sco­tia gov­ern­ment was in vi­o­la­tion of the sec­tion of the Con­sti­tu­tion deal­ing with equal­iza­tion and re­gional de­vel­op­ment.

One crit­i­cism of CBRM’s le­gal strat­egy was that victory would have been worth­less. It wouldn’t have earned a penny, and the prov­ince could have blown off the out­come by of­fer­ing some to­ken set­tle­ment. This as­sumes that a gov­ern­ment found by the Supreme Court of Canada to be in vi­o­la­tion of an im­por­tant con­sti­tu­tional text would be un­der no com­pelling obli­ga­tion to set things right by act­ing in good faith and in the spirit of the rul­ing.

We’re about to find out in the case of the teenaged ter­ror­ist who’s grown to adult­hood dur­ing seven years in Amer­i­can cus­tody at the Guan­tanamo prison camp whether the im­per­a­tive to act in mag­nan­i­mous com­pli­ance with a non-pre­scrip­tive con­sti­tu­tional find­ing of our high­est court in­fuses the cur­rent gov­ern­ment in Ottawa. And, if it doesn’t, what hap­pens then.

In an ini­tial re­ac­tion, Jus­tice Min­is­ter Rob Ni­chol­son stressed the points the gov­ern­ment had won and noted the sever­ity of the al­le­ga­tions against the Cana­dian-born Khadr, who’s ac­cused of throw­ing a gre­nade that killed U.S. Spe­cial Forces medic Sergeant Christo­pher Speer in Afghanistan in 2002. Ni­chol­son added that the gov­ern­ment would care­fully re­view the rul­ing “and de­ter­mine what fur­ther action is re­quired.”

The pro-Khadr view holds that the gov­ern­ment must now press for his repa­tri­a­tion to Canada, where he’d likely be re­leased. But there are other po­ten­tial gov­ern­ment re­sponses that might sat­isfy the rul­ing. One thing that Khadr’s lawyers would ac­knowl­edge at this point, how­ever, is that hav­ing that the con­sti­tu­tional dec­la­ra­tion in their back pocket is far from worth­less even though their guy is still be­hind bars.

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