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Article
The Reach of Rights in the Security State: Reflections on Khadr v. Canada
Criminal Reports (6th) (2008)
  • Benjamin L Berger
Abstract
There is much to celebrate about the Supreme Court of Canada’s decision in Khadr v. Canada (Minister of Justice). In the context of a continuing effort to ensure that Omar Khadr enjoys the benefit of the most basic principles of the rule of law in the adjudication of his case, the decision is a forceful condemnation of the participation of Canadian officials in the investigations and proceedings that have taken place at Guantanamo Bay. In holding the Canadian government to its Charter obligations, the decision is a strong rejection, for the purposes of Canadian constitutional law, of the U.S. government’s attempt to place individuals detained at Guantanamo Bay beyond the reach of both domes- tic and international law — in short, outside of the rule of law. Applying a narrow exception that it established in its otherwise extremely restrictive ruling on the extraterritorial application of the Charter in R. v. Hape, the Supreme Court laudably holds that the chief Canadian instrument of civil and political rights binds agents of the state when engaged in foreign proceedings that offend Canada’s international human rights obligations. For Omar Khadr, this translates into a declaration that the Crown is subject to disclosure requirements analogous to those found to be a component of fundamental justice in R. v. Stinchcombe.   
Disciplines
Publication Date
2008
Citation Information
Benjamin L Berger. "The Reach of Rights in the Security State: Reflections on Khadr v. Canada" Criminal Reports (6th) Vol. 56 (2008) p. 268 - 277
Available at: http://works.bepress.com/benjamin_berger/83/