Omar Khadr: Checking The Executive.

Now that the Supreme Court has agreed to hear the government's appeal on November 13th, I couldn't be more pleased. Let's start with a general principle and then move to the particular: it offends me as a Canadian that any government of any political stripe has the arbitrary power to move the goalposts at its pleasure. Either the Charter has meaning or it doesn't -- I expect a split decision. On the general principle that the government has a duty to protect and enforce Canadian citizens' charter rights even while in detention abroad, I am convinced that the Harper government will lose -- we might even see a 9-0 judgment on this point of law.

Now, moving to the particulars surrounding the Khadr case, this is where it becomes unpredictable. Quite obviously, sensitive intelligence information will be revealed in camera to the justices. As I've said before, in my estimation, the known knowns surrounding Omar Khadr are but a small chapter in an otherwise large intelligence volume. The government will do everything it can to keep that secret. Several national intelligence agencies will be the object of a firestorm if what I suspect is the case is ultimately revealed.

That brings us to the crux of the matter. Can national security considerations trump an individual's Charter rights? They sure can but the court will have to weigh the serious, direct and imminent nature of the threat to our national security. I suspect that Khadr's alleged offenses do not rise to the point where they pass the test required to overrule his Charter rights. But then I'm not a constitutional lawyer.

I hope the court agrees to repatriate Khadr in a timely manner. Let him face trial in Canada and let the process play out as much as possible in public.

But in the final analysis, it's critical that our highest bench provide the Canadian government with direction and parameters. Once that has been done, our democracy will be all the better for it.