Attorney General of Canada on behalf of the United States of America v. Abdullah Khadr
Nov. 3, 2011: Decision on the application for leave to appeal, Bi De Ro. The application for leave to appeal from the judgment of the Court of Appeal for Ontario, Number C52633, 2011 ONCA 358, dated May 6, 2011, is dismissed without costs.
Can Rob Nicholson read? This might sound like a scurrilous question, Rob Nicholson being the minister of justice and attorney general of Canada, but the pattern of behavior of the Department of Justice over the last five years is consistent with the hypothesis that Nicholson can’t read. It’s also possible that he is merely incompetent. Or both. Or maybe he’s just a slimeball. Lest anyone think this is an ad hominem attack, I submit that Nicholson’s malpractice is no worse or better than Eric Holder’s, which, admittedly, is a very low standard. However, Nicholson is my attorney general, and Holder isn’t.
First, there is the curious resignation of John Sims, previous deputy attorney general of Canada, the ranking civil servant in the Department of Justice, who was replaced in confused circumstances by a completely invisible new civil servant, Myles Kirvan, who used to work for the guy who brought us the Bear Head fiasco and is more suited to being the MacKay family’s consigliere than the country’s most senior lawyer. There’s no evidence Kirvan can read either, or even exists.
Second, The Honorable Rob Nicholson is from Niagara Falls (Niagara Falls! Ohh, I knew I’d never be satisfied until I had his blood running between my fingers … so slowly I turned step by step, step by step I crept upon him — and when I saw the streak on his countenance I grabbed him and I couldn’t help myself, I was going out my mind…), but I admit that’s not conclusive evidence of illiteracy.
Third, there is the more definitive evidence from the Ontario Court of Appeal in United States of America v. Khadr, 2011 ONCA 358 (cited by the Supreme Court as above):
I would dismiss the appeal. There is no appeal against the extradition judge’s finding that the human rights violations were shocking and unjustifiable. Because of the requesting state’s misconduct, proceeding with the extradition committal hearing threatened the court’s integrity. Responding to that threat was a judicial matter to be dealt with by the extradition judge, not an executive decision reserved to the minister. The extradition judge did not err in concluding, at para. 150, that “[i]n civilized democracies, the rule of law must prevail.” Moreover, the remedy of a stay of extradition proceedings did not, as the attorney general submits, allow “an admitted terrorist collaborator to walk free.” Khadr is liable to prosecution in Canada for his alleged terrorist crimes. The stay granted by the extradition judge does not impair the attorney general’s ability to exercise his lawful powers to commence a prosecution in Canada.
Then there is the fabulous paragraph 150 of Justice Speyer’s original Ontario Superior Court decision:
IV. The Clearest of Cases
I recognize that the collection of reliable intelligence is of the highest importance in protecting and securing a nation from the dangers of terrorism. It must also be recognized that there will always be a tension, especially in troubled times, in the balancing of intelligence and security issues with cherished democratic values, such as the rule of law and protection from human rights violations. In civilized democracies, the rule of law must prevail over intelligence objectives. In this case, the sum of the human rights violations suffered by Khadr is both shocking and unjustifiable. Although Khadr may have possessed information of intelligence value, he is still entitled to the safeguards and benefit of the law, and not to arbitrary and illegal detention in a secret detention center where he was subjected to physical abuse. The United States was the driving force behind Khadr’s fourteen-month detention in Pakistan, paying a $500,000 bounty for his apprehension. The United States intelligence agency acted in concert with the ISI to delay consular access by DFAIT to Khadr for three months, contrary to the provisions of the Vienna Convention. The United States, contrary to Canada’s wishes, pressured the ISI to delay Khadr’s repatriation because of its dissatisfaction with Khadr being released without charge, even though there was no admissible evidence upon which to base charges at that time. In my view, given this gross misconduct, there cannot be a clearer case that warrants a stay.
Note that the Ontario Court of Appeal unanimously affirmed Speyer’s decision, and on further appeal, the Supreme Court of Canada didn’t give Nicholson the time of day. I believe that anybody who reads the decisions in this case will be proud of Canada — I am, for sure — and feel privileged to live in a society that has an independent judiciary honoring 800 years of history, starting with the Magna Carta, and whose Supreme Court declines to hear from an attorney general who hasn’t done his homework, who can’t or won’t read, and who appears to believe the courts are designed for Moscow show trials of his own invention.
Nicholson has lost case after case in Canadian courts, yet persists in arguing — at public expense — cases that have been conclusively dealt with as if he never read the decisions. Maybe he can’t read the decisions.
It is a puzzle.