The geek with a cynical view

Monday, July 5, 2010

Kady O'Malley DimitriWatch: Hey, remember Omar Khadr's application for judicial review? .

DimitriWatch: Hey, remember Omar Khadr's application for judicial review?

July 5, 2010 4:12 PM

By Kady O'MalleyThe one that was launched by Khadr's legal team following the Supreme Court decision earlier this year, which found that their client's Charter rights had indeed been breached, and ordering the government to seek an appropriate remedy?

Well, according to a federal court decision issued today, the remedy that the government eventually settled on -- a diplomatic note to the United States requesting that evidence gleaned through interrogations conducted by Canadian officials not be used at trial, which was politely, but firmly, dismissed by the recipients -- did not, in fact, cure the breach in question. (You can read the official summary of the case here.)

As a result, Judge Russel W. Zinn has given the government a seven-day deadline to "advise the applicants of all untried remedies that would potentially cure or ameliorate the breach" -- and he reserves the right to determine the likely effectiveness of the alternate remedies proposed by the government -- and, more crucially, to impose one if Canada is unable to implement an appropriate remedy within a reasonable amount of time.

At the moment, I'm still going through the ruling, but one bit towards the beginning did jump out at me, given the recent debate over the role and authority of political staffers.

Shortly after the court issued its ruling in Khadr II, Dimitri Soudas - then the prime minister's associate director of communications -- made the following comments to reporters, in response to questions over how the government would respond to the decision:

Q: Will you comply?

DS: It's a court decision and it's from the highest court. Complying with it means you respect the decision. Their ruling said we get to decide .... ...

Q: Apart from bringing him back to Canada, are there things the government can do to respect the court's judgment regarding the violation of his Charter rights?

DS: We're reviewing that and more will follow....

Q: So there's no shift in your overall position that you've held about whether or not he comes back to Canada?

DS: Correct.

Q: But you are reviewing, just so we're clear, you are reviewing his situation there and there may be things the government of Canada may do to help him or ameliorize [sic] his situation?

DS: The minister of justice will obviously have a lead role in this. But there is no shift in Canadian policy on this. And when I say there is no shift in Canadian policy, I take it all the way back to the previous government.

According to Khadr's lawyers, Soudas' statement - as well as a more substantial one made by Foreign Affairs Minister Lawrence Cannon - constituted an official decision by the government, and as such, should be subject to judicial review. The government, however, disagreed, and claimed that it was "not amenable" to such legal scrutiny, as these were "merely statements, not decisions."

Zinn, however, sided with the applicants.

To find that these statements were not reflective of a new decision in these circumstances would require a finding that the Prime Minister's Associate Communications Director and the Minister of Foreign Affairs were speaking without the authority of a decision by the executive having been made. There is no evidence to support such a finding and given their senior roles such lack of authorization should not be assumed absent convincing evidence.

The lesson for senior staffers, it seems, is clear: when it comes to commenting on contentious ongoing legal matters, be very judicious in your choice of words -- lest you end up making a cameo appearance in a future ruling.