THE STRATEGIC LAWYER

::.law + strategy.::.law + governance.::.law + politics.::. ::.you get the jist.::

Welcome back, Khadr

Omar Khadr, the Egyptian Canadian who was detained at age 15 in 2002, is back in Canada once again. Of course, it won’t be all fun and games–he’ll be in Milhaven, a maximum security prison . But, at least he’ll be on sovereign territory, in a country that has a better record regarding human rights than certain other nations Who Shall Remain Nameless, whose rights-based rhetoric has been ringing increasingly hollow with the passing years.

Nor is our current administration, here in the Great White North, a great friend of rights. In looking at law, policy and the challenges of governing a state, there is a perpetual tension between rights and optimization  Rights protect citizens–and sometimes even individuals who happen to be within the nation’s territory. But rights are also expensive to administer. If you don’t know what I mean, think about how much it costs to have the necessary apparatus, such as a human rights tribunal, before which someone can make a claim against another party for violation of his or her rights. Think also of important and [IMO] desirable initiatives like accessibility laws. These give rights of access to buildings and other spaces, to those who have accessibility issues–an important thing. But it’s expensive. Non-profits, like churches for instance, who generally operate pretty close to the line, need to figure out how to raise money to make their facilities accessible. Again–a good thing, and most churches probably feel they should be doing this anyway, but not cheap.

That’s where the optimization comes in. There are only so many resources available, be they in cash, or in services or in some other form. The state will sometimes make choices not to officially implement or administer the protection of certain rights. In particular, so-called “negative rights”, which are sometimes construed as “freedom from” (basically freedom from being interfered with unnecessarily). Many rights-based regimes will have tribunals for the protection of the freedom froms, so if one of those are violated, the person whose rights have been violated will need to take the initiative and bring it before the tribunal. The state won’t implement active regimes (like accessibility laws) that require positive action to be taken. But, there are also decisions that states will make–and Canada is no exception–in which optimization prevails over rights. There are obvious ones, like a court saying that a person’s right to life, liberty and security of the person (which is in Canada’s Charter) can be overriden in cases where that set of rights endangers others. So, the safety of the many, in this case, prevails over the rights of the one.

There are also more subtle ones, such as saying that in the face of an economic crisis, a given government does not have to implement wage parity between male and female workers in a given industry, because at this time the government simply cannot afford it.

So, our current government is a big fan of the optimization option. For governments, it’s certainly less trouble than providing apparatuses and taking initiatives that respect individual rights. If a given administration doesn’t have much time for such individual rights in the first place, then it’s a pretty convenient way to cut corners and subtly (or not-so-subtly) promote your own agenda.

Khadr is likely better off here than he was at Gitmo, where the detainees had no officially recognized rights. But, his high profile is both a curse and a blessing. A curse, because an administration with a “tough on crime” platform that is all about gut-reaction initiatives that are popular with those who haven’t actually read the research about what works in in curbing crime, will be eager to ensure that Khadr’s treatment will fit the rhetoric. On the other side, Khadr’s treatment is the subject of public interest, and if the past is any indicator, there will be outrage if this treatment crosses the line.

Let’s hope it doesn’t go there. We’ve all done dumb things when we were kids. His acts did result in tragedy, but he has paid a high price for it. The next step should be to determine how badly damaged–physically, mentally, emotionally–he has been by all the things that have happened to him since then, and what should happen next.

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This entry was posted on September 30, 2012 by in Constitutional Rights, Governance, Human Rights, Law and Order, Op/ed, Rights, The Administrative State and tagged .
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