It's good to be king

What justification is there, besides the federal government's supposed sovereignty over foreign affairs?

It can allow Canadians' Charter rights to be shat upon, so long as they can claim that it's another government that's doing the actual shitting?

Abousfian Abdelrazik would have been lost with this sort of ruling!

harper, will obviously do nothing.

If a Canadian government knows that a Canadian's human rights are being violated overseas, that government can't even be made to ask for that Canadian's safe return?

What nonsense!

Well, there's more in the decision that needs some thinking about, although I still find it disappointing.

I'm still thinking, but let me park here these passages from the background arguments:

[36] In exercising its common law powers under the royal prerogative, the executive is not exempt from constitutional scrutiny: Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441. It is for the executive and not the courts to decide whether and how to exercise its powers, but the courts clearly have the jurisdiction and the duty to determine whether a prerogative power asserted by the Crown does in fact exist and, if so, whether its exercise infringes the Charter (Operation Dismantle) or other constitutional norms (Air Canada v. British Columbia (Attorney General), [1986] 2 S.C.R. 539).

[37] The limited power of the courts to review exercises of the prerogative power for constitutionality reflects the fact that in a constitutional democracy, all government power must be exercised in accordance with the Constitution. This said, judicial review of the exercise of the prerogative power for constitutionality remains sensitive to the fact that the executive branch of government is responsible for decisions under this power, and that the executive is better placed to make such decisions within a range of constitutional options. The government must have flexibility in deciding how its duties under the power are to be discharged: see, e.g., Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at paras. 101-2. But it is for the courts to determine the legal and constitutional limits within which such decisions are to be taken. It follows that in the case of refusal by a government to abide by constitutional constraints, courts are empowered to make orders ensuring that the government’s foreign affairs prerogative is exercised in accordance with the constitution: United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283.

...

[46] In this case, the evidentiary uncertainties, the limitations of the Court’s institutional competence, and the need to respect the prerogative powers of the executive, lead us to conclude that the proper remedy is declaratory relief. A declaration of unconstitutionality is a discretionary remedy: Operation Dismantle, at p. 481, citing Solosky v. The Queen, [1980] 1 S.C.R. 821. It has been recognized by this Court as “an effective and flexible remedy for the settlement of real disputes”: R. v. Gamble, [1988] 2 S.C.R. 595, at p. 649. A court can properly issue a declaratory remedy so long as it has the jurisdiction over the issue at bar, the question before the court is real and not theoretical, and the person raising it has a real interest to raise it. Such is the case here.

[47] The prudent course at this point, respectful of the responsibilities of the executive and the courts, is for this Court to allow Mr. Khadr’s application for judicial review in part and to grant him a declaration advising the government of its opinion on the records before it which, in turn, will provide the legal framework for the executive to exercise its functions and to consider what actions to take in respect of Mr. Khadr, in conformity with the Charter.

And Khadr is awarded costs.

Um ... let me think for a while. Also finish lunch.

By this ruling's logic though, ANYTHING that the federal government has constitutional authority over would be exempt from judicial enforcement.

Any federal government could violate any law and then the Supreme Court would say "this is wrong" without going so far as to say "fix it" let alone "fix it or else," because that would conceivably be an intrusion into the perogative powers of the executive.

The portions of the judgement skdadl quotes certainly include more nuance than the CBC report did. But for the moment the court has simply thrown it back to the government at a time when the government can ignore it because parliament has been suspended. So the government can continue to ignore it and there is no remedy. That's why people are frustrated with it.

I thought the judgment was quite favorable. First, even though Canada didn't capture Khadr or torture him, the judgment says that Canada violated his fundamental rights by the fact of interviewing him and passing the results to the Americans. Canada was complicit, they said.

It is important to understand that the court gave Khadr a "declaratory remedy". He won the case.

While the court refuses to fine-tune its order to the government, it is clear that there must be a remedy. It is up to the government to find the remedy, "in conformity with the Charter" as they say.

I don't think the government could just ignore this decision. They have to act, but have discretion as to exactly how.

some of my thoughts...

My reading is summed up like this: The current situation is not acceptable, but demanding he be brought home may not be the only remedy the government could take, so the court is asking the government nicely to do something.

Also:
Not asking for Kadr's return is amoral and unethical, but not illegal or unconstitutional.

Now:
When he finally does get back, and takes this ruling in hand to sue the government of Canada, how much will he get? 10 mil? 15? He is going to get something. Hell, he deserves something.

hmmmm:
Is the court trying to avoid handcuffing future governments with a difficult prescident? But I can't imagine a scenario in which this prescident would be a bad thing.

You know....
These detainees are an albatross on ol'Barak Hussien Obama. (Using the middle name on purpose as a reminder of the american right) He probably would love to get this dealt with, and send Kadr(a case the US might lose anyway) home.

ummmmmm....
Of course, the americans might get a little pissed that a "terrorist" who "murdered" an american soldier skips across the world's longest undefended border to a multi-million dollar settlement. Ya, I can see Pill O'Really dig his teeth into that.

Of course:
Harper's not going to do shit. He doesn't respect the court, he doesn't respect the Senate, parliment, democracy, human rights or, well anything that stands between him and more power. The only way Kadr's coming home is if Obama says "Enough of this crap, send the boy back to Canada." Ironically, he could say that tomorrow, and Kadr would be back in Canada the same day.

I think I'll end with - Just Bring him Back Already!!

The decision to acknowledge the supremacy of the government in foreign affairs makes sense if the government is not run by sociopaths, ideologs, theocrats, racists(see Omar vs Brenda) and nitwits......

I'm just catching up but didn't the court say the gov must remedy and if they don't then the court would. But did the court say 'any remedy will do', not that I can see.