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opinion had been subjected to sleep deprivation techniques to make him less resistant to interrogation. Khadr has repeatedly asked the Canadian government to seek his repatriation, but Prime Minister Stephen Harper won't do it, saying the U.S. legal process should run its course. Khadr applied to the Federal Court for judicial review of the prime minister's decision, arguing it violated s. 7 of the Charter ("Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accor- dance with the principles of fundamental justice"). He was suc- cessful in the Federal Court and the Federal Court of Appeal, and the government was ordered to ask the United States for his repatriation. The prime minister appealed. A unanimous Supreme Court agreed Khadr's s. 7 rights had been violated in several ways. The most important for Canadian purposes was Khadr's questioning by Canadian officials and the giving of interrogation results to the Americans. The Supreme Court said: "Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these con- ditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects." Despite the Charter violations, the Supreme Court did not order the government to request Khadr's repatriation. "Consistent with the separation of powers and the well- grounded reluctance of courts to intervene in matters of foreign relations, the proper remedy is to grant Mr. Khadr a declaration that his Charter rights have been infringed, while leaving the government a measure of discretion in deciding how best to respond. . . . [T]he 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." Perhaps the court was loath to order a remedy it couldn't enforce. If the government ignored such an order, there would be a constitutional crisis. In the Monty Python movie Life of Brian, the Black Knight tells Brian, who has just cut off his arms and legs, "Come back here and take what's coming to you." The Supreme Court, after being polite and deferential in its Khadr judg- ment, took a similar tack. It insisted the courts are empow- ered to make orders ensuring the government's foreign affairs prerogative is exercised in accordance with the Constitution, and they can adjudicate the claims of individuals who claim their Charter rights have been or will be violated by the exer- cise of the government's discretionary powers. Just a few days after the Khadr ruling, Foreign Affairs Minister Lawrence Cannon announced the government would not request repatriation. The press was full of accounts about how the government was flouting the court, calling its bluff, and not taking the matter seriously. A bit later, per- haps intending to soften the blow, Cannon announced the government had sent a diplomatic note to the United States requesting that Canadian-collected evidence not be used in ntitled-2 1 Khadr's prosecution. Observers described this response to the Supreme Court judgment as inadequate. In the U.S., the struggle between the executive and judicial branch goes back to the beginning of federation, and for long has been robust in the extreme. If anything, the judiciary has had the better of it. Pulitzer Prize winner and historian James MacGregor Burns, is his new book Packing the Court, wrote: "The Supreme Court's long supremacy over the Constitution has often led Americans to look to the justices for leadership. . . . It has led them to identify the court with the strength of the constitutional order and of the nation itself." But Burns is appalled by the ascendancy of a court he regards as elitist and undemocratic. He proposes that a president refuse to accept Supreme Court verdicts striking down progressive legisla- tion and seek a constitutional amendment rejecting judicial supremacy. In Canada, the Supreme Court has asserted its post-Charter constitutional power in a variety of impressive ways, but, as Khadr shows, is not yet ready to stare down the executive branch and provoke a constitutional crisis. That's probably a good thing, although I believe the crisis will come. Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. Visit him online at philipslayton. com. IN CANADA'S NEWEST TERRITORY EMPLOYMENT OPPORTUNITY www.gov.nu.ca Priority Hiring The Government of Nunavut wants to create a more representative workforce, so that it can better understand and serve the needs of Nunavummiut. Priority will be given to Director, Legislation DEPARTMENT OF JUSTICE Ref. #: 05-100296 IQALUIT, NUNAVUT Salary is in accordance with the Senior Management Salary Grid. Nunavut Northern Allowance: $14,289 per annum. Closing: April 9, 2010 Apply to: Department of Human Resources Government of Nunavut www.gov.nu.ca GOVERNMENT OF NUNAVUT www. C ANAD i AN law ye rmag.com APRIL 2010 17 3/18/10 9:44:34 AM