CBRM and Khadr share a parallel
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.