Khurrum Awan

The Supreme Court’s decision that Omar Khadr’s constitutional rights were violated by Canadian officials who interrogated him knowing that he had been tortured, coupled the Court’s decision to “leave it to the government to decide how best to act” in light of its declaration, is the right call. In making this decision, the Court has been mindful of the separation of powers between the executive and the judiciary, and has struck an appropriate balance between its obligations to protect constitutional rights while not unduly interfering in how the government acts in policy-making areas. However, the Court’s ruling has provided the opposition with an opportunity to continue building an already developed, critical narrative of Stephen Harper’s attitude towards democratic institutions and constitutional norms.

Although advocates for Omar Khadr and various public interest groups that intervened in this case are disappointed that the Court did not ask the Harper Conservatives to request Khadr’s repatriation, the Court unambiguously stated that the conduct of Canadian officials in this case “offends the most basic Canadian standards about the treatment of detained youth suspects.” Neither did the Court leave the government with a “do-nothing” option in the face of this finding. Rather it warned that “courts are empowered to make orders ensuring that the government’s foreign affairs prerogative is exercised in accordance with the constitution,” and left it up to the Harper government to determine “how best to act” in response to its declaration that a serious rights violation has occurred.

Unfortunately, Stephen Harper’s past statements, as well as the recent ones of his Minister of Justice, indicate that he is about to tell the Supreme Court that the best way to act is to do nothing.  And therein lies an opportunity for the Liberals to strengthen a critical narrative of Stephen Harper, which posits that he simply ignores democratic institutions, constitutional norms, and human rights concerns that step in his way.

This narrative was ignited by Harper himself, when he first shut-down Parliament in order to save his government, and then shut it down for a second time in order to scuttle the work of the committee probing the alleged abuse of Afghan detainees. Further, this is a narrative the Canadians care about, as evidenced by Harper’s recent 10-point slide in public opinion polls. Now, Harper is about to provide Liberals with an opportunity to extend this democracy-based narrative by defying the Supreme Court of Canada and refusing to act in the face of its finding that the actions of Canadian officials violated basic constitutional and human rights. He is set to dig deeper into the do-nothing, ideological trench he has built around the Khadr case. Lets hope that the Liberals are on the ball on this one. The Supreme Court’s balanced ruling, coupled with Harper’s impending defiance of perhaps the most respected institution of our democracy, has given them something to run with.