The Khadr Decision: A Just Result?

The Supreme Court of Canada released its unanimous decision in Prime Minister of Canada et al. v. Omar Khadr on Friday, January 29, 2010. It declared that the Canadian government is violating Omar Khadr’s right to life, liberty and security under the Charter of Rights and Freedoms. The court denounced the use of torture in the form of sleep deprivation by U.S. authorities against Mr. Khadr when he was 15 years old in order to soften him up for interrogations conducted by Canadian authorities. However, it stopped short of ordering what was being sought – the request by the Canadian government to release him from Guantanamo and return him to Canada – citing Crown prerogative in regard to foreign relations. What are the implications of this decision? What is the appropriate role for the judiciary in the circumstances of this case? Is a declaration of injustice a just remedy? What difference does it make that Omar Khadr was a child at the time of the initial violations and the allegations against him?

Our Panel:

Prof. Audrey Macklin is a professor at the Faculty of Law. She holds law degrees from Yale and Toronto, and a bachelor of science degree from Alberta. She served as law clerk to Mme Justice Bertha Wilson at the Supreme Court of Canada. Prof. Macklin’s teaching areas include criminal law, administrative law, and immigration & refugee law. Her research and writing interests include transnational migration, citizenship, forced migration, feminist and cultural analysis, and human rights. She has published on these subjects in numerous journals and in collections of essays such as The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill and Engendering Forced Migration. Prof. Macklin has been active in the Omar Khadr case and most recently acted as co-counsel for the Asper Centre in Prime Minister of Canada et al. v. Omar Khadr at the Supreme Court.

Prof. Kent Roach is Prichard-Wilson Chair of Law and Public Policy at the University of Toronto Faculty of Law, with cross-appointments in criminology and political science, and a Fellow of the Royal Society of Canada. He is a graduate of the University of Toronto and of Yale, and a former law clerk to Justice Bertha Wilson of the Supreme Court of Canada. Professor Roach’s books include Constitutional Remedies in Canada (winner of the 1997 Owen Prize for best law book), Due Process and Victims’ Rights: The New Law and Politics of Criminal Justice (short-listed for the 1999 Donner Prize for best public policy book), The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (short-listed for the 2001 Donner Prize), and September 11: Consequences for Canada (named one of the five most significant books of 2003 by the Literary Review of Canada). In recent years, Professor Roach has specialized in anti-terrorism law and policy and is the co-editor of The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill (2001) and Global Anti-Terrorism Law and Policy (2005). Professor Roach also served on the research advisory committee for the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar and is Director of Research (Legal Studies) for the Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182.

Prof. David Schneiderman is Professor of Law and Political Science. He was called to the Bar of British Columbia in 1984 where he practised law and then served as Research Director of the Canadian Civil Liberties Association in Toronto from 1986-89. He was Executive Director of the Centre for Constitutional Studies, an interdisciplinary research institute, at the University of Alberta from 1989-99. Professor Schneiderman has authored numerous articles on Canadian federalism, the Charter of Rights, Canadian constitutional history, and constitutionalism and globalization. He has authored Constitutionalizing Economic Globalization: Investment Rules and Democracy’s Promise (Cambridge University Press, 2008) and co-authored The Last Word: Media Coverage of the Supreme Court of Canada with Florian Sauvageau and David Taras (UBC Press, 2006). He is founding editor of the quarterly Constitutional Forum Constitutionnel and founding editor-in-chief of the journal Review of Constitutional Studies.

Cheryl Milne is the executive director of the Asper Centre. She has extensive experience as a legal advocate for children previously with the legal clinic Justice for Children and Youth. There she led the clinic’s Charter litigation at the Supreme Court of Canada including the challenge to the corporal punishment defence in the Criminal Code [Canadian Foundation for Children, Youth and the Law v. Canada (2004)], the striking down of the reverse onus sections of the Youth Criminal Justice Act for adult sentencing [R. v. D.B. (2008)], and most recently an intervention involving the right of a capable adolescent to consent to her own medical treatment (A.C. v. Manitoba Child and Family Services (2009)]. She is currently the Chair of the Ontario Bar Association’s Constitutional, Civil Liberties and Human Rights section.

The workshop will be moderated by Prof. Hamish Stewart.

Event date: Thursday, February 11, 2010, from 12:30 PM to 2:00 PM
Location: Rm FLB, Flavelle House, Faculty of Law, University of Toronto

Link to the webcast here.