OREGON'S GOT NERVE -- WHERE'S CANADA'S?

Today, an Alberta judge will have a rare opportunity to send the
message that Canadian citizenship really means something: The court
can dismiss Oregon's lawsuit against Calgary mother Lisa Kirkman.

Lisa's now 12-year-old son Noah was apprehended by Oregon child
welfare authorities during a cross-border visit in 2008 and held for
two years -- this despite the willingness of his mother and Alberta
child welfare authorities to look after him in Canada. Now, and with
plenty of gall, Oregon is suing Lisa Kirkman in Alberta for the cost
of Noah's foster care.

Aside from the injustice of being forced to pay a foreign government
for depriving you of your own child, this case raises broader
questions about the willingness of Canada to look after the interests
of Canadian citizens stranded abroad. It is hard to imagine the United
States meekly standing by were Canadian authorities to seize and hold
for two years an innocent American child. For Americans, that kind of
Canadian action might well verge on a casus belli.

Yet, by all appearances, the Canadian government was content to sit
back and wait two years for an elected Oregon county judge to finally
permit Noah -- a Canadian citizen -- to return home. What if the judge
had decided to permanently adopt Noah to an American foster family?
Would that have caused our government to take decisive action?

Canadian provincial child welfare authorities are at least as capable
as Oregon's of caring for a 10-year-old. A transfer from Oregon to
Alberta could have been arranged within days of Noah's apprehension.
As it happens, when Noah finally returned to Canada after two long
years, Alberta child welfare authorities returned him to his mother
almost immediately.

Anybody who can remember their own childhood ought to shudder to think
of the disruption and trauma that invaded Noah's world. Will Noah be
the last innocent Canadian child hung out to dry like this?

Noah Kirkman is no Omar Khadr. Noah is accused of no crime. The United
States had no interest in prosecuting Noah. Neither should we assume
that our Charter of Rights and Freedoms will say the same about Noah
that it has about Khadr. In Canada, (Prime Minister) v. Khadr, the
Supreme Court of Canada declined to order our federal government to
intervene further on Khadr's behalf, calling it a matter of executive
prerogative. That might be understandable in Khadr's case, where the
applicable foreign policy is complicated by war crimes charges. But
would the Supreme Court say the same in Noah Kirkman's case?

When it fails to act publicly and decisively in cases like Noah's, the
federal government puts its precious prerogative at risk. Legal
jurisprudence has yet to develop, but our constitution may well attach
a use-it-or-lose-it condition to executive discretion. Future cases
like Noah Kirkman's promise to present far more difficult tests than
Khadr for federal governments who hesitate to act.

The Supreme Court in Khadr said that when Canadian citizens are held
abroad, Canadian courts cannot force the Canadian government to
intervene. They should not have to. If anything, Noah's case
emphasizes that point. If Canadian government intervention is not, as
our Supreme Court seems to have said, a legal issue, it ought to be a
political issue. Will Canadians accept the idea of an elected judge in
a backwater U.S. county dictating to a G7 nation? What about tin-pot
authorities anywhere else in the world?

In the absence of a signal shift in government policy to something
beyond the purely ad hoc, Canadian parents have to think long and hard
before sending their children abroad for any reason, even to
supposedly friendly allied nations.

The same applies to Canadian companies trying to do business in a
global economy. Can the Canadian government post-William Sampson be
relied on to protect or repatriate Canadian employees mixed up with
foreign authorities?

The present federal cabinet has had a good deal to say about restoring
pride in Canadian citizenship and Canada's place in the world. Flexing
some muscle on behalf of Canadians detained abroad -- starting with
the likes of Noah Kirkman -- is the surest way to give meaning to the
rhetoric.