Yesterday’s Orwellian Supreme Court of Canada decision in the Omar Khadr case embodies perfectly the zeitgeist of Canada under the thumb of Prime Minister Stephen Harper.
Never mind the details of the case itself. Young Mr. Khadr’s benighted family history, the lousy friends his father kept, his murderous intent or lack of it, the misadventure that befell him when his path crossed that of the American military at a dark and lawless moment in U.S. history, his tender age when these events unfolded, the refusal of Mr. Harper’s government to help him despite his Canadian citizenship: all this is back story.
The issue here is the rule of law and whether or not we still enjoy it in this country.
The Supreme Court’s bizarre and troubling decision yesterday would suggest that, notwithstanding 24 pages of nice legal distinctions, as a practical matter we do not.
Let us not delve too deeply into the details of this case, then, which only serve to distract us. Those who want to do so may read the excellent and detailed coverage in the on-line editions of the Toronto Star or the Globe and Mail, or read the ruling itself.
Instead, let us consider the fundamental issue. To wit: The Constitution is the supreme law of the land. It stands above all other laws and establishes the fundamental principles of our political regime and delineates the limits of the power of our government.
Thus, under the Constitution Act, 1982, which includes our beloved Charter of Rights and Freedoms, there are things our government simply may not do. Under Section 4 (1), for example, no House of Commons or provincial or territorial legislative assembly “shall continue for longer than five years from the date fixed for the return of the writs at a general election of its members.” (Note that even the notorious Notwithstanding Clause, Section 33 of the Charter, does not apply to this inalienable right.)
So in the case of Mr. Khadr, held prisoner in the legal black hole of the United States’ deliberately extra-constitutional internment camp in Guantanamo, Cuba, all nine judges of the top Canadian court agreed that his fundamental human rights have been violated and continue to be violated, by both Canadian and U.S. government authorities.
Now, under our constitutional regime and the very concept of the rule of law, the government is required to take action when the nation’s top court has determined it has violated someone’s rights. This is why two lower courts ordered the government to attempt to repatriate this Canadian citizen.
But what did the Supreme Court of Canada have to say about this? In the words of the Toronto Star report: “…The high court said that while the actions of the executive – the Harper government – are ‘not exempt from constitutional scrutiny,’ it would not be ‘appropriate for the court to give direction as to the diplomatic steps necessary to address the breaches of Mr. Khadr’s Charter rights.’” (Emphasis added.)
The only sensible way to interpret this is that the Harper government is, in fact, exempt from constitutional scrutiny! At least, it is when it finds constitutional scrutiny inconvenient. Worse, apparently the entire Supreme Court agrees with this! Any other interpretation, one fears, obviously would be double-plus untrue.
The Supreme Court has spoken: The government has exceeded its powers, it has violated the rights of a citizen. This wrong must be set right … except, of course, in the case of the Harper government, it need not be. After all, it would not be appropriate for the court to give directions. War is Peace. Hate is Love. Slavery is Freedom.
Not so surprising, then, that the Harper government quickly declared victory and indicated that it will not be so quick to attempt to repatriate Mr. Khadr, even though the court says it should. After all, the law, which under the notion of the rule of law applies to everyone, according to a reasonable interpretation of what the Supreme Court has said, does not apply to them.
Ergo, there is no rule of law.
Is this a rogue decision, or does it indeed express the new Canadian zeitgeist? Well, our Constitution (which also guarantees a system of government similar in principle to that of the United Kingdom, not that of the United States) decrees that the Ministry must resign if it loses the confidence of the House.
But when the House had clearly lost confidence in the Ministry, and had indicated its intention to vote non-confidence, it was swiftly and conveniently prorogued before it could so vote. Problem solved. As in the case of the unsavoury Khadr family, the general populace seems not unduly alarmed.
There is a Constitution, and there are laws – but they do not appear to apply to our governors, at least when the governors are Harperite neocons and at least when it suits them.
Thus we see yesterday’s ruling of the Supreme Court mirrored in the political spirit of the nation.
So what happens, if at the end of the constitutionally mandatory five-year period cited above, the defeat of the Harper government seems inevitable? Is the five-year requirement set aside until such time as the Conservatives, so called, can win again?
Impossible? Absurd, you say? Could never happen here? Why not, if the government is exempt from constitutional scrutiny?
Remember, our Constitution is the supreme law of the land. If the nine justices of the Supreme Court of Canada will not – or cannot – make the government obey that law, what is it that we are paying them for?