Cases the author cites answer the question of whether s. 7 applies when Canada only hands over an individual but the actual deprivation is effected by a foreign government. That is not the question in the Khadr case.

The question is whether s. 7 applies to Canada’s participation in the unlawful process at Guantanamo.

The Supreme Court answered “yes” and found that Canada owed Khadr a duty of disclosure. The Federal Court, affirmed by the Federal Court of Appeal, found that Canada also owed Khadr a duty of protection. The only practical remedy in this case is a request for repatriation.

These decisions put no onerous burden of the Executive in its conduct of foreign policy. The duty to protect does not imply that Canadian officials should not visit Canadians detained abroad for fear of legal liability. Participation in the disgraced process at Guantanamo and visiting Canadians in foreign jails are two different things.

A request for repatriation is equally undemanding on Ottawa. The author mentions “use of force.” This is, of course, a far-fetched interpretation of the duty to protect.

Finally, the duty in the Khadr case is narrow and negative. The government has a constitutional obligation to refrain from certain well-defined conduct. This finding of a clear-cut negative constitutional duty fully accords with Canadian Charter jurisprudence.

While Mr. Mirza is correct to point to Suresh as a guideline for what constitutes a causal connection between the actions of the state (here the interrogation) and the deprivation of his Charter rights, he has misconstrued what the actual deprivation claimed was. It is not the actual detention of Mr. Khadr at Guantanamo Bay and the regular mistreatment that needs to be connected to the interrogation by CSIS, it is the episode of mistreatment right before the interrogation (sleep deprivation).

It is true that the United States is primarily responsible for Mr. Khadr’s mistreatment. However, the purpose of the sleepm deprivation mistreatment was to induce Mr. Khadr to talk, and Canadian officials knew that when they interviewed Mr. Khadr to obtain information for intelligence purposes. There can be no doubt that their conduct amounted to knowing participation in Mr. Khadr’s mistreatment.” [emphasis added]. Khadr FCA para 54

To say that there is no casual connection between the mistreatment of Mr. Khadr for the purposes of being able to extract information by Canadian authorities from him is definitely a stretch. Especially when those same authorities knew of the offending treatment had taken place. Canadian authorities by interrogating Mr. Khadr while aware of his treatment where implicitly consenting to it for their benefit. If Canadian authorities had not interrogated Mr. Khadr that day, then it would be reasonable to assume that American authorities would not have subjected him to the episode of mistreatment leading up this specific interrogation. The causal connection which would need to be shown under Suresh is not mistreatment in general but a specific episode of mistreatment connected to the actions of the Canadian authorities (the interrogation), that the proceeding sleep deprivation.

“At least where Canada’s participation is a necessary precondition for the deprivation and where the deprivation is an entirely foreseeable consequence of Canada’s participation, the government does not avoid the guarantee of fundamental justice merely because the deprivation in question would be effected by someone else’s hand.” Suresh para 54. Here the second part of test would have also been met. CSIS was well informed about US interrogation methods at Guantanamo Bay.

Mr. Mirza Also claims:
“From a foreign policy perspective, the trial judgment can be interpreted as saying that Canadian officials should not make contact with citizens detained abroad. Once government officials make contact and become aware of any inhumane treatment, the Charter would compel Canada to repatriate the citizen. The simple foreign policy alternative is to let the citizen languish and not do anything to avoid a possible causal connection.”

That is not at all what the judgments are saying. What they are saying is that Canada should not make contact for the purposes of eliciting information for intelligence purposes when they know that inhumane treatment will likely be applied to the individual for the purposes of the meeting.

On the issue of remedy, for the purposes of the remedy claim by Khadr, I would guess that they did not need to argue to forcefully on the exact methods that should be imposed by the court and that is why we did not see specific guidelines to what was expected. At the time the case was heard, the US Government was actively trying to send many Guantanamo Bay inmates to other countries. Khadr in fact is the only western national still housed there. All other’s had been repatriated to their country of orgin with increasingly less opposition. The Obama administration would be more then glad to send Khadr back to Canada, if only the Canadian government would agree/ask.

Besides Khadr, in the past six months saw the case of Robert Allan Smith (FC ordered Minister of Foreign Affairs to lobby US Government for clemency on execution). Whatever comes of this decision, I hope that that SCC takes the time to outline exactly what legal obligations under Section 7 of the Charter Canada has to Canadians detained in foreign countries.