The SCC, International Relations, and Terrorism (R v. Khawaja)

This Thursday the Supreme Court of Canada (“SCC”) will announce whether or not it will hear the appeal of Momin Khawaja. This high profile case involving Canada’s new terrorism provisions under the Criminal Code is of interest to more than just Canada. There is speculation that Britain may seek Khawaja’s extradition if the Supreme Court decides to hear his appeal.

The political environment in which the Supreme Court must act is hard to ignore. The issues raised are more complex then just technical questions of law. Considering the other nations interested, what role or obligations do the judiciary and particularly the Supreme Court have regarding Canada’s foreign relations?

While the alleged acts that are the basis for the charges have been neatly placed in the criminal context of Canada’s legal taxonomy, but the backdrop of the metaphorical war on terror and the pressures it brings should hardly be ignored.

Does the public perception of legitimacy related to the international undertakings of the war on terror, such as Afghanistan and Iraq, impact how we see our domestic legislation? David Kennedy, in his book Of War and Law suggests a link between the legitimacy established under the law of war and an impact on the interpretation of the law in war. The question is whether this dynamic is contained to the relationship between the law of war and law in war or if the latter might be substituted for other legal provisions with some nexus with the metaphorical war?

To my knowledge, there is no real way of telling if the dynamic Kennedy put forward in his book is actually bleeding into domestic interpretations by courts short of some specific mention from the SCC. However, in an age of transjudicial communication and the increased significance of courts in domestic decision making these are the questions I find myself pondering while attempting to ascertain what the probable outcome for Khawaja might be.