Dangerous Deference: The Supreme Court of Canada in Canada v. Khadr
![handle is hein.journals/hcrcl46 and id is 255 raw text is: Dangerous Deference: The Supreme Court of
Canada in Canada v. Khadr
David Rangaviz*
American troops captured Omar Khadr, a Canadian citizen, in Afghani-
stan when he was fifteen years old.' The United States accused Khadr of
killing an American medic by throwing a grenade at American troops during
a July 2002 ambush.2 He has resided at Camp Delta at Guantanamo Bay
since shortly after the time of his capture.3 On November 13, 2009, Attor-
ney General Eric Holder announced that the United States would prosecute
Khadr and nine other detainees at Guantanamo before a military commis-
sion.4 This made him the only Guantanamo detainee to be charged with war
crimes who is also a citizen of a Western country.' However, a deal reached
between Khadr and the United States in late October 2010 led to a guilty
plea that avoided the necessity of a military commission trial.6
On January 29, 2010, the Supreme Court of Canada (SCC) issued the
latest in a series of decisions related to Khadr's detention. In Canada (Prime
Minister) v. Khadr (Khadr II),' the SCC agreed with the Federal Court of
Appeal that Canada's participation in Khadr's interrogation had violated his
rights to life, liberty, and security of the person under Section 7 of the Cana-
dian Charter of Rights and Freedoms.' However, the SCC denied Khadr's
request that it order the Canadian Executive to seek his repatriation, despite
finding repatriation to be an appropriate, just, and sufficiently connected
remedy to the Charter violation.9 Instead, the court found that the Canadian
government's decision not to request Khadr's repatriation was an exercise of
* Harvard Law School, J.D. Candidate, 2011. Brown University, B.A., 2008. The author
wishes to thank Phil Mayor, Emily Werth, and Professor James Cavallaro for their insightful
and thoughtful comments on earlier drafts of this piece, as well as the entire editorial board of
the Harvard Civil Rights-Civil Liberties Law Review for their support.
' Melissa A. Jamison, Detention of Juvenile Enemy Combatants at Guantanamo Bay: The
Special Concerns of Children, 9 U.C. DAVIS J. Juv. L. & POL'Y 127, 139 (2005).
2 Clifford Krauss, Threats and Responses: Detainee; Canadian Teenager Held by U.S. in
Afghanistan in Killing of American Medic, N.Y. TiEs, Sept. 14, 2002, at A8.
Jamison, supra note 1, at 141.
4 Khadr to face U.S. military commission, CBC NEWS (Nov. 13, 2009) [hereinafter CBC
NEws], http://www.cbc.ca/canada/story/2009//ll13/omar-khadr-supreme-court-hearing.html.
s'Dahlia Lithwick, Supreme Court Dispatch, Eh, SLATE (Nov. 13, 2009, 5:36 PM), http://
www.slate.com/id/2235467. See also Charges: Conspiracy; Murder by an Unprivileged Bel-
ligerent; Attempted Murder by an Unprivileged Belligerent; Aiding the Enemy, United States
v. Khadr, No. 05-0008 (Ct. Mil. Comm'n Rev.), available at www.defense.gov/news/
Nov2005/d200511O4khadr.pdf [hereinafter Charges].
'Charlie Savage, Deal Averts Trial in Disputed Guantanamo Case, N.Y. TUEs, Oct. 26,
2010, at A12.
Canada (Prime Minister) v. Khadr (Khadr II), 2010 SCC 3, [2010] 1 S.C.R. 44 (Can.).
8 See id. at paras. 19-21.
* Id. at paras. 27-47.](ViewImageLocal?handle=hein.journals/hcrcl46&div=11&collection=journals&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Dangerous Deference: The Supreme Court of Canada in Canada v. Khadr
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most