'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

See all articles by Kent Roach

Kent Roach

University of Toronto - Faculty of Law

Date Written: 2010

Abstract

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

Suggested Citation

Roach, Kent, 'The Supreme Court at the Bar of Politics': The Afghan Detainee and Omar Khadr Cases (2010). (2010) National Journal of Constitutional Law 115-155, Available at SSRN: https://ssrn.com/abstract=2281499

Kent Roach (Contact Author)

University of Toronto - Faculty of Law ( email )

Toronto, Ontario M5S 1A1
Canada
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