(from Spring 2010 Rights Review 3:1)

What one might call “older” constitutional law has been very much in the news lately with the two controversial prorogations by Prime Minister Harper; the Government’s failure to disclose documents relating to Afghan detainees being released by Canadians to face torture; and the Supreme Court of Canada failing to provide a meaningful remedy for the ongoing breach of Omar Khadr’s Charter rights. Khadr, a Canadian citizen, has been held at Guantanamo Bay since 2002 on terrorism and related charges after being captured on Afghan soil. The Court found a serious breach of Mr. Khadr’s Charter rights yet chose not to tread into the realm of foreign affairs by directing the Government of Canada to seek his release from US custody. Though I focus solely here on the Khadr case, the thread common to all of these events is that they all concern exercises of the royal prerogative.

What is the royal prerogative? It is the unfettered discretion that once ran the machinery of government – Charles I described it as absolute and beyond reproach and was later beheaded – of which little remains. Despite the whittling away by statute and practice, what remains of the Crown prerogative is, nevertheless, significant.

Subjects such as treaty-making, diplomacy and the deployment of armed forces are matters within the realm of the Crown’s prerogative. They have been taken over entirely by the Prime Minister and his cabinet. Foreign affairs and national security remain, then, subjects for the exercise of Crown prerogative and so seemingly within the exclusive purview of the Prime Minister. This is one of the principal sources for the concentration of authority in the Prime Minister’s office.

Prerogatives continue to exist, however, only to the extent that they have not been disrupted by practice (such as disuse) or statute. No “modern lawyer,” wrote English constitutional authority A.V. Dicey in 1885, “would maintain that these powers or any other branch of royal authority could not be regulated or abolished by Act of Parliament.” The conventions that have been built up around the Crown’s prerogatives ensure the supremacy of the House of Commons, Dicey wrote.  Not to preserve power for its own sake but to serve the needs and demands of the people as expressed through their representatives in the House of Commons.

What role did the prerogative play in the Kadhr decision? It forestalled any meaningful vindication of the continuing violations of Khadr’s Charter rights.  As the prerogative over foreign affairs has not been displaced by statute, the Court preferred to defer to “the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account broader national interests.” The Court opted to “leave it to the government to decide how best to respond to this judgment in light of current information, its responsibility for foreign affairs, and in conformity with the Charter” (para. 39). 

In response the Government merely requested that the US not use any evidence in proceedings against Khadr that was generated by Canadian officials. This provides little in the way of a meaningful remedy to a Canadian citizen who has spent eight years languishing in US custody.

Opposition parties outnumber the government in the House of Commons and can thereby direct the exercise of the royal prerogative by ordering the Minister to seek the release of Mr. Khadr. They must commit to do so, however, by statute. It is no small feat to proceed by way of a private members’ bill, but it is not impossible. The only danger lies in Canada’s unelected Senate where, by reason of recent appointments, Conservative senators enjoy a majority. However, independent senators hold the balance of power. Gathering the political will in the face of some hostile public opinion – the Khadrs are described as “Canada’s first family of terrorism” – may prove the more difficult element.

Now is also an opportune moment to begin cataloguing and cabining all prerogative power. This is what the U.K. House of Commons Public Administration Select Committee recommended in 2004 and the House of Lords recommended in respect of the prerogative of deploying troops in 2006. These recommendations were on the heels Prime Minister Blair’s decision to participate in the invasion and occupation of Iraq. 

Two last things to note: First, the Court’s deference to the prerogative power over foreign relations is in stark contrast to other cases where the Court has ordered Canada to seek assurances that the death penalty will not be pursued when an individual is extradited. Here, the Court distinguished these earlier intrusions into Crown prerogative on the basis of “specific facts.” In the Burns case, for instance, “there was nothing to suggest that seeking such assurances would undermine Canada’s good relations with other states” (para. 42). Yet, the Court refers to no evidence tendered in the Khadr proceedings that suggests an order requesting his return would undermine Canada-US relations. The Crown conceded in the lower courts that it was not alleging that relations with the USwould be damaged by a court order to make a request for the return of Khadr. Because the Crown adduced no such evidence, the Federal Court of Appeal issued a more meaningful remedy by directing the Government to request Khadr’s return.

Second, and relatedly, this decision encourages secrecy and non-transparency in the exercise of the Crown prerogative by rewarding the Government for not producing evidence regarding the possible release of Omar Khadr. The Court deferred entirely to the government’s claim under the prerogative as, otherwise, they were “in the realm of speculation.” It is “unclear” whether the proposed remedy would be effective – there being an “inadequate record” regarding a situation that is “ongoing” that “continues to evolve,” and that “signals caution” (paras. 43-45). The Federal Court of Appeal drew the opposite inference because the Crown adduced no evidence that requesting Khadr’s return would damage US-Canada relations. The Supreme Court preferred simply to defer, suggesting that there was something else going on here other than judicial anxiety over damaging foreign relations. What may have been at work is the Court’s perennial anxiety concerning its own legitimacy and how public opinion could turn against it, given the ire directed at the Khadr family, if it were to provide Khadr with a meaningful remedy.