'The Supreme Court at the Bar of Politics': The Afghan Detainee and Omar Khadr Cases
(2010) National Journal of Constitutional Law 115-155
43 Pages Posted: 20 Jun 2013
Date Written: 2010
This paper critically examines judicial decisions not to apply the Canadian Charter of Rights to the detention of prisoners by Canadian Forces in Afghanistan given allegations of torture and to reverse a remedy that Canada should request the US to repatriate a Canadian held at Guantanamo Bay. It also examines the Supreme Court's decision to apply the Charter to Omar Khadr's interrogation by Canadian officials at Guantanamo Bay, Cuba but to reverse a trial judge's decision that Canada must request Khadr's repatriation as the appropriate remedy for the unconstitutional interrogation. The paper concludes that the Supreme Court's reversal of the repatriation remedy and its refusal to hear the Afghan detainee case cannot be justified on normative or prudential grounds such as those defended by constitutional theorist Alexander Bickel.
Keywords: Canadian law, national security, comparative constitutional law
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