TheCourt.ca covered Khadr’s case back in September 2009, before it was argued at the Supreme Court. (See my original post here, and Ahsan Mirza’s counterpoint here). Unsurprisingly, the Court didn’t take my advice to dismiss the appeal and confirm a duty on the government to attempt to repatriate its citizens when they are held in conditions that breach international human rights norms. Disappointingly, while the judges agreed with most of Khadr’s arguments, they stopped short of granting him a remedy.

Based on the quick turnaround time and the length of the judgment (it only took three months to issue the 48-paragraph decision, about half the average time between hearing and judgment), the Court seems to have viewed the case as somewhat open and shut. I suppose, if nothing else, Khadr can be comforted that he’s received quick service in our legal system—he got an expedited hearing this time around, and his last case at the Supreme Court, Canada (Justice) v. Khadr (Khadr 2008, 2008 SCC 28) took only two months to be handed down.

The fact that the Court found that the government’s actions had violated, and continue to violate, Khadr’s section 7 Charter rights is not much of a consolation prize. This case was about the remedy. On that point, the Court, in a per curiam opinion, reversed the Federal Court of Appeal, which by a 2-1 majority had confirmed the trial judge’s order compelling the government to ask the United States to send Khadr home from Guantanamo Bay, where he has been held for the past seven years.

The opinion quickly dispenses with many of the legal issues in the case, finding, for the same reasons as Khadr 2008, that the conduct of the government officials amounted to a breach of section 7 of the Charter. The Court clearly disapproves of the government’s handling of Khadr’s case. In characterizing the Charter breach, the judges held that representatives of the Canadian government were participating in conduct that “offends the most basic Canadian standards about the treatment of detained youth suspects.” They then moved on to consider the issue of remedy under s. 24(1).

Section 24(1) grants wide discretion to a court to craft a remedy that is “appropriate and just in the circumstances”. Khadr’s first hurdle, then, was to demonstrate that his request met that criteria. The Court held, quoting Doucet-Boudreau v. Nova Scotia (Minister of Education) (2003 SCC 62), that an appropriate and just remedy in the circumstances is “one that meaningfully vindicates the rights and freedoms of the claimants,” and agreed that Khadr’s proposed remedy could potentially do so. So far, so good. However, the Court then limits the reach of this principle (again quoting from Doucet-Boudreau) by requiring that an appropriate and just remedy “employ means that are legitimate within the framework of our constitutional democracy,” as well as be a “judicial one which vindicates the right while invoking the function and powers of a court.”

Which brings us to Khadr’s stumbling block, and to my difficulty with the reasoning in this case.

The issue at the core of the case is the extent to which our courts can get into the business of foreign affairs, and in particular, the Crown’s prerogative power in this area. The Government argued “not at all”. The Court tried to step gingerly around the edges of the issue: it held that it is for the executive to decide how to exercise its powers, but the courts can properly determine whether a prerogative power exists and whether the exercise of that power infringes the Charter. The opinion acknowledges that in reviewing the exercise of prerogative powers, the executive remains “better placed to make such decisions within a range of constitutional options”. However, the Court reserved the option of intervening in the future: in situations where the government refuses to “abide by constitutional constraints,” courts can step in to ensure the prerogative power is exercised in accordance with the Constitution.

Except, apparently, in this case. Much of the reasoning described in the foregoing paragraph is taken from United States v. Burns (2001 SCC 7), where it was held that the Government of Canada had to get assurances from the United States that the death penalty would not be sought against a person in Canadian custody against whom extradition proceedings were being brought. However, the Court distinguishes Burns on the following bases: Khadr is not under Canadian control, the effectiveness of his proposed remedy is unclear, and the Court cannot properly assess the impact of the repatriation request on Canada’s foreign relations.

There are undoubtedly political concerns involved here, but Khadr is the only citizen of a western democracy left at Guantanamo. Why? Because every other government with citizens who were imprisoned there asked the US to send them back! Where every other country (including the UK, of which President George W. Bush once said “America has no truer friend”) has repatriated its citizens, it becomes increasingly difficult to buy the government’s arguments that the implications of Khadr’s request are unpredictable.

Of course, none of this was before the Court, which led the judges to express their concern about the thin record before them. But in these situations, it should be the government’s responsibility to demonstrate why a particular course of conduct has not been followed. There is clearly a reason that the government has not acted. If it can’t be revealed in open court, fine. But courts weigh government justification for actions all the time—it is a crucial part of the section 1 Charter analysis.

The argument then becomes something akin to “we can’t have our courts second guessing the political considerations of the executive branch”. But this, too, happens all the time. In security certificate review hearings and in the recent battle over the release of certain sections of Justice Dennis O’Connor’s Arar commission report, Federal Court judges have rejected the government’s contention that releasing intelligence shared by third parties, or censoring broad swaths of a report, would cause irreparable harm to Canada’s interests.

In the result, Khadr is left with a declaration that his rights have been violated. The Court ends its opinion by attempting to suggest that such relief has been recognized in previous decisions as “an effective and flexible remedy for the settlement of real disputes.” However, this is somewhat disingenuous. The passage quoted, from R v. Gamble ([1988] 2 S.C.R. 595) was referring to the Court making a declaration that Gamble was eligible for parole. In that case, the declaration allowed access to a process that was previously unavailable—you can’t attempt to get paroled if you are not parole-eligible. Here, I don’t see how this declaration gives Khadr anything more than what he started with.

It has been pointed out by many commentators (including editorials in the Globe and Mail, the National Post, and the Toronto Star) that the weight of the Supreme Court’s moral authority should compel the government to repatriate Khadr. Hopefully that’s true. But if it doesn’t, does he have to go through this all over again? Since the Court did not actually order the government to do anything, the basis on which Khadr could start a new judicial review application is not entirely clear. Even in the absence of that issue, it seems hard to believe that in a hypothetical “Khadr 3” the Court would suddenly find that the evidentiary record was full enough to justify granting Khadr the remedy he wants. And if it would be prepared to make such an order in the future, why not do so now? Giving the government one last chance after 7 years of inaction does not seem likely to change much.

In the end, the value of this judgment for Khadr may depend on the decision in a case currently under reserve. In City of Vancouver v. Alan Cameron Ward (Case No. 33089), the Court has been asked to determine whether damages are available as a remedy under s. 24(1) when a Charter breach was not accompanied by a tort, did not result in loss to the plaintiff, or was not the product of bad faith. If they answer yes, perhaps Khadr will be able to turn the Court’s clear finding of an ongoing s. 7 breach into an award of damages. Of course, how that would be valued is anyone’s guess. How one quantifies damages flowing from seven years spent in a legal black hole may be Khadr’s next question for the Supreme Court.

On May 23, 2008, the Supreme Court released a judgment addressing the applicability of the Charter to the actions of CSIS and other Canadian officials in interrogating Canadian citizen Omar Khadr at Guantánamo Bay in 2003, and in passing the fruits of such interrogations to US military authorities. Pursuant to section 7 of the Charter and Stinchcombe, Khadr had claimed a right to disclosure of information obtained by the Crown in this way and other information that might be relevant to the US military commission proceedings he was facing. The Court concluded that the Charter did apply to the conduct of Canadian officials at Guantánamo Bay in this case, apparently contradicting its 2007 holding in Hape, 2007 SCC 26, that “extraterritorial application of the Charter is impossible” (para. 85 in Hape). According to the Court in Khadr, the Hape principle holds true in general, but is subject to an exception “if Canada was participating in a process that was violative of Canada’s binding obligations under international law” (para. 19).

Given the dubious international legal bases upon which the Hape principle is founded (some of which are described in previous posts to TheCourt.ca), Khadr’s retrenchment of that principle, even if only partial, is at first blush a welcome development. However, the Court’s unanimous and unsigned judgment in Khadr is also startlingly brief, particularly given the complexity and importance of its central issue and its dramatic qualification of the Hape principle, which a majority of the Court had asserted in categorical terms less than a year earlier. The Court’s brevity of analysis in asserting, justifying, and applying the Khadr exception raises—yet leaves unexamined—a number of fundamental uncertainties and questions. This further clouds the intelligibility and soundness of the rules governing the extraterritorial applicability of the Charter, as well as the role of international law in shaping those rules.

These difficulties flow in part from the Court’s apparent claim, in Khadr, that it is not introducing any new exception to the Hape principle at all, but rather simply applying an exception already introduced in Hape itself. This is plainly not so. As the Court acknowledges in Khadr, Hape “was based on international law principles against extraterritorial enforcement of domestic laws and the principle of comity” (para. 17). The Court in Khadr continues: “The Court [in Hape] was united on the principle that comity cannot be used to justify Canadian participation in activities of a foreign state or its agents that are contrary to Canada’s international obligations” (para. 18). Hence, concludes the Court, the exception it applies in Khadr was already established in Hape. Yet this line of reasoning fails to address the principal legal basis upon which the Hape principle was truly founded, which was not the non-binding principle of comity, but rather the binding “international law principles against extraterritorial enforcement of domestic laws”. While Hape suggested that the non-binding principle of comity must yield whenever Canada participated in unlawful foreign activities, nothing in Hape even hinted that the binding principles of international law limiting Canada’s extraterritorial jurisdiction must also yield in such circumstances. The latter proposition is purely an innovation of Khadr itself.

Why does this matter? What difference does it make whether the exception applied in Khadr was established in Hape (as intimated by the Court) or rather in Khadr?

There are several reasons why the Court’s approach to this issue is significant. The first is somewhat formal. The Court, as the ultimate authority on the legal meaning of the Canadian Constitution, has an obligation to explain its interpretations of the Charter in clear and transparent terms. Had the Court openly acknowledged in Khadr that it was modifying the Hape principle by articulating a new exception to it, it would naturally have been incumbent on it to provide some reasoned, intelligible and persuasive basis for doing so. However, by purporting not to introduce but merely to apply an exception to the Hape principle already propounded in Hape, the Court effectively sidesteps the need to explain itself. Of course this would not be problematic if the Court had indeed pioneered and justified the exception in Hape. Yet, as seen above, this was not the case. Nor does the Court in Khadr justify the proposition that binding principles of international law forbidding extraterritorial application of the Charter must yield to Canada’s other international legal obligations. The result of this failure to explain the legal basis for such a proposition (in either Hape or Khadr) is to give the Khadr exception, whether desirable or justifiable or not, an air of arbitrariness that undermines its authority.

More substantively, the Court’s failure to explain or justify the Khadr exception leaves unanswered the obvious question: How or why does Canada’s participation abroad, in a process that is inconsistent with its international legal obligations, lead to applicability of the Charter to that participation? Implicit in this question are many others. For example, given that the issue is the extraterritorial applicability of the Charter, and assuming that that issue must be resolved in a manner consistent with Canada’s international legal obligations, why would any such obligations that do not address the extraterritorial scope of Canada’s human rights commitments or its jurisdictional competence be relevant? Or, even assuming they are, in a confrontation between Canada’s international legal obligations which, on the one hand, purportedly compel it not to apply the Charter extraterritorially, and, on the other hand (and for reasons not made clear by the Court), compel just such extraterrestrial application, why should the latter prevail? Further, why is the issue whether Canada has participated in a process that violates its international legal obligations, rather than, simply, whether it has violated such obligations? This way of structuring the test appears to move the crucial inquiry away from the actions of Canadian officials themselves and to focus it, instead, on foreign conduct. Is it meaningful to ask whether a foreign process violates Canada’s international legal obligations? And so on. These questions, and others, require and deserve answers. Yet the Court’s approach in Khadr robs it of the opportunity to provide and defend them.

Finally, and perhaps most importantly, by failing squarely to acknowledge its creation in Khadr of an exception to the Hape principle, the Court sidesteps the need to address the underlying reasons that cry out for such an exception in the first place. Had the Court done so, it is possible that it would also have had to confront some of the more unsustainable implications of the Hape principle, as starkly illustrated on the facts of Khadr. It may seem of no great moment to deny the benefit of protections against unreasonable search and seizure to a corrupt Canadian businessman carrying out money laundering activities on a Caribbean island, especially in the name of the noble principle of upholding international law. It is altogether another matter to realize that a rule justifying such denial will also, in principle, deny protection to a Canadian child detained, interrogated, and prosecuted by a foreign government, with Canadian government collusion, on a Caribbean island of quite a different character, in violation of some of Canada’s most fundamental international legal obligations and some of the Charter’s most basic guarantees. In short, the facts of Khadr expose the untenability in principle of Hape. Rather than face that untenability, the Court in Khadr effectively evades it by reading down Hape in a manner that superficially makes it appear less untenable. In doing so, the Court not only misses its chance to disavow the flawed majority reasoning in Hape, it deepens the legal and logical morass currently governing, in the name of respect for Canada’s international legal obligations, the extraterritorial applicability of the Charter.

Note: This post is a précis of a more fully developed critique of Khadr published as: John H. Currie, “Khadr’s Twist on Hape: Tortured Determinations of the Extraterritorial Reach of the Canadian Charter” (2008) 46 Canadian Yearbook of International Law 307.

It must be emphasized that the veracity of these reports remains to be seen. However, if true, they raise several questions: does Ms. Jean have the constitutional authority, as our impartial head of state, to intervene on Mr. Khadr’s behalf? How is this related to the SCC decision in Canada v. Khadr 2008 SCC 28 from this past March? Will the Governor General’s intervention ultimately lead to Khadr’s repatriation?

The Harper-Jean Meeting
La Presse reported that before the current election was called the Governor General met with Prime Minister Harper and requested that the he repatriate Omar Khadr. The newspaper speculated that the meeting came shortly after the public release of videos of the interrogation of Mr. Khadr by unsympathetic CSIS officals inside the Guantanamo prison six years after his capture. Harper reportedly said that his caucus and party base would never accept Khadr’s repatriation, even though he was not entirely against an eventual return. The Prime Minister has since denied taking this position.

According to La Presse, the Governor General’s intervention was not made flippantly. The paper stated Michaëlle Jean and her husband Jean-Daniel Lafond, a Quebec filmmaker, consulted with experts in constitutional and international law. Their conclusion was that the government must bring Khadr home to comply with the Charter and our international legal obligations. Interestingly, this information surfaced days after Mr. Lafond told the Globe and Mail that “its very safe for a politician to destroy culture” in response to the Harper government’s recent cuts to arts funding.


An Abuse of Office?
Would this alleged intervention constitute an abuse of Ms. Jean’s office? Some experts say no. The Globe cited Walter Bagehot, a British Constitutional scholar, who said that “The sovereign has, under a constitutional monarchy such as ours, three rights – the right to be consulted, the right to encourage, the right to warn.” Some Canadians would be surprised to learn Governor General Michaëlle Jean is the representative of our head of state. Her office is intended to be non-partisan and Ms. Jean performs primarily ceremonial functions.

In the past, there were regular meetings between the Prime Minister and Governor General regarding government affairs. In recent times, however, these meetings have been largely reduced to speeches from the throne and biannual requests by the Prime Minister to dissolve a dysfunctional government. Some would say that the Governor General plays an important role as an impartial representative of our head of state and a counterweight to the partisan House of Commons and Senate. Others argue Rideau Hall is a relic of our colonial past and call for an elected head of state. Critics of the Governor General will be perhaps emboldened by her decision to intervene in a political matter.

But with so much speculation, lets turn to some facts.

A Canadian Citizen at Guantanamo Bay
TheCourt.ca has followed the Khadr situation closely and a recent post from our Editor in Chief summarized the key facts as follows:

By this point the story of Omar Khadr is well known to Canadians. Khadr, a Canadian citizen, was taken prisoner by American forces in Afghanistan on July 27, 2002. He was fifteen at the time. His arrest followed a battle with American forces. Khadr was transported to Guantanamo Bay, Cuba where he has been charged with a number of offences that were to be tried before a U.S. Military Commission. The principal charge against him is murder. The U.S. alleges that near the end of the firefight that preceded his capture, Khadr threw a grenade which killed an American soldier.

The Khadr case was heard at the SCC in March 2008. The main issue was Mr. Khadr’s access to records from Canadian officials who interviewed him and provided this information to U.S. authorities. In a broader sense however, the case was about a Canadian citizen’s right to information in his government’s possession, which may help him defend charges levied by another government. Khadr was partially successful in establishing a duty to disclose under s. 7 of the Charter. The SCC decision provided Khadr with access to records but not all information relevant to the charges against him. The balancing of national security and other considerations had a significant effect on the extent of the disclosure afforded to Mr. Khadr.

By no means, however, was the Khadr decision from the SCC an unqualified call for his repatriation. Rather, the decision established Khadr’s right to disclosure of information given to U.S. authorities as a direct consequence of conducting the interviews. It remains up to the Federal government to negotiate Khadr’s release from Guantanamo Bay.

The Government’s Response
Could Ms. Jean’s reported intervention sway the government’s position on the Khadr file? It would appear not. When questioned about this story recently Harper told reporters “this story is false. My position on Mr. Khadr is clear. He is charged with very serious crimes and we believe that he should face trial on those charges.” This is consistent with the official federal government position that Canada should allow the American courts to decide Mr. Khadr’s fate.

It has been some time now since leaders of other western countries acted to repatriate their citizens detained at Guantanamo Bay. In fact, Mr. Khadr is the only citizen of a Western country left in the prison. Ironically the effect of Ms. Jean’s reported intervention could be even frostier relations between Rideau Hall and 24 Sussex Drive, while Mr. Khadr continues to languish at Guantanamo.

Khadr has been in the custody of U.S. forces for over six years. During that period, the United States Supreme Court has characterized the Military Commission system, created by an executive order that was signed by President Bush in the aftermath of the September 11 attacks, as contrary to both the Uniform Code of Military Justice and the Geneva Conventions. In plain English, illegal both under American and international law. See Rasul v. Bush, 542 U.S. 466 (2004), Hamden v. Rumsfeld, 548 U.S. 557 (2006).

Khadr’s case has prompted intervention by the Supreme Court of Canada. This past year our high court, pointing to the decisions of its American counterpart, also concluded that the circumstances surrounding Khadr’s detention have “constituted a clear violation of fundamental human rights protected by international law”. See Canada (Justice) v. Khadr, 2008 SCC 28 at para. 24. Given this conclusion, the Court took the rather unusual step of ordering CSIS to provide Khadr’s defence lawyers with records relating to interviews it conducted with Khadr during his detention at Guantanamo Bay.

Despite all of this, Khadr continues to remain in U.S. custody at Guantanamo Bay. His trial before a U.S. Military Commission had finally been scheduled to commence on October 8th. That was until yesterday, when the presiding judge, Colonel Patrick Parrish, ordered a further postponement. The reason? Delay on the part of U.S. military lawyers in handing over information to Khadr that he requires in order to effectively answer the charges.

Khadr’s U.S. military lawyer, Lieutenant Commander Bill Kuebler, has complained about his inability to gain access to a witness to the 2002 firefight. The witness, who was identified for the first time this week as a “U.S. government employee” named Jim Taylor, reported at the time, contrary to the official version of events that that U.S. Government has been relying upon, that Khadr was not the only person alive inside the compound at the time the grenade was thrown. It is, quite frankly, astonishing, that at this very late stage in the process the U.S. Government has still not furnished Khadr’s lawyers with information that it has long possessed that may be critical to establishing that he is in fact innocent of the most serious charge leveled against him, murder.

Until now, Prime Minister Stephen Harper has refused to intervene on behalf of Khadr to secure his release from Guantanamo Bay. Leaders of other Western countries took action on behalf of their nationals long ago, with the result that Khadr is now the only citizen of a Western country still detained at Guantanamo Bay. In justifying his refusal to get involved, Harper has maintained that Canadian Government intervention would be premature and he has insisted that the American legal process should be permitted to play itself out. Harper has not suggested that there should be any time limit on how long that process should be allowed to take. Sadly, no amount of delay and unfairness seems capable of changing our Prime Minister’s view of the Khadr case.

Despite a clear and judicially recognized pattern of illegality and unfairness in the U.S. Military Commission process, our Prime Minister appears rather willing to let politics trump principle. Harper of course knows that amongst most Canadians the plight of Omar Khadr does not attract very much sympathy. The truth is, Omar Khadr’s father was indeed an Al Qaeda terrorist. Members of his family, including his mother and sister, in a well-publicized CBC documentary, have expressed strong and unapologetic support for the 9-11 terrorist attacks on the United States. Given this, doing the right thing when it comes to Omar Khadr would undoubtedly come at some political cost. For Stephen Harper, whose political inclinations make him a natural supporter of U.S. foreign policy in the aftermath of 9-11 (remember his strong criticism of the Liberal Government’s refusal to join in the U.S. invasion of Iraq), this is a cost he is clearly not willing to pay.

A brief background is necessary to situate the discussion. In 2002 Khadr, who was only 15 at the time, allegedly killed a U.S. Marine during a battle in Afghanistan. He was captured and charged with a series of offences stemming from his alleged role in that battle, including a charge of murder in the death of the Marine. He was transported to Guantanamo Bay where he has been these past six years. Khadr is a Canadian citizen.

During the military commission proceedings (the US process by which he is to be tried), he unsuccessfully tried to obtain from the U.S. authorities documents and interview notes of his interrogation by CSIS agents. (The CSIS agents had interrogated him while he was incarcerated at Guantanamo Bay.) He then applied to the Federal Court of Canada to obtain all information that the Canadian Government may have about his case with a view to potentially using that information to defend against the charges he is currently facing. He lost at trial but won on appeal. The Government of Canada appealed the decision to the Supreme Court of Canada.

The issue for the Court’s consideration was whether a Canadian citizen is entitled to access material that is in the possession of the Canadian government that might be capable of assisting him to defend against charge(s) in a foreign country. To decide this issue, the Court would have to define the relationship between a citizen and his government in these circumstances.

In deciding this question the Supreme Court delivered a judgment bereft of real analysis of this issue, instead treating the case as though it could be resolved on the bases of a very narrow exception referred to in obiter in R. v. Hape, 2007 SCC 26. In my view, resort to Hape does little more than obscure and even distort any meaningful analysis of the real issue presented by this case.

Hape involved a radically different situation. Mr. Hape sought to prevent the Canadian government from using information it had obtained abroad, while co-operating with a foreign government’s police force, to convict him at his trial in Canada. Whereas Khadr was asking to gain access to information that the Canadian government had to assist him in his defence against charges in a foreign country. The two situations could not be more different. Hape was not concerned with disclosure obligations to assist a citizen but rather the ability of our government to use information to convict a citizen.

In Hape the issue was whether the use of information obtained abroad in a manner that does not comport with Canadian constitutional standards is just. In other words did the Charter follow the Canadian officials and govern their actions even though they were acting in a foreign country in cooperation with foreign officials and in compliance with the law of that jurisdiction.

In Hape the Court noted that unless the foreign conduct violates our sense of fundamental justice, the Charter does not apply to the actions of Canadian government officials operating abroad. The reason, principles of international comity require that Canada not export its constitutional norms to other countries. In such circumstances any evidence gleaned is available for use by our courts unless there is a clear “violation of international law and fundamental human rights”. Hape, at paras. 51, 52 & 101 per LeBel J..

In Khadr the Court assessed the issue raised in light of Hape‘s analytical model and caste the issue as whether the conduct of CSIS agents was in violation of international law and fundamental human rights and therefore a violation of Khadr’s s. 7 Charter rights.

The Court concluded that CSIS did violate international law and therefore, by extension, Mr. Kadhr’s s. 7 rights. But the Court was careful to pinpoint the moment at which the s. 7 violation occurred. It did not occur when the CSIS agents attended Guantanamo Bay to interview Khadr or when they refused to turn over their interview notes or any other materials. Rather, the constitutional wrong arose when the CSIS officials turned over the fruits of their interrogation to American officials and then refused to provide these same materials to Khadr. It is difficult to understand how this information sharing can be the cause of any s. 7 violation. The reality is that CSIS routinely shares and receives information from foreign agencies, indeed sharing is the lifeblood of any intelligence agency?

It was not the sharing, per se, that violated international law and fundamental human rights. Rather, it was sharing in the context of participating in the American military commission process which, according the United States’ own Supreme Court, violates basic international human rights obligations. In other words, the violation stems from CSIS participating in a process that is in breach of international law and human rights norms, a process that could see a Canadian citizen deprived of his liberty,that violates s. 7 of the Charter.

What is the remedy for this constitutional wrong? It is to level the playing field, so that Mr. Khadr gets what the foreign state received. So the Court ordered that the Canadian government turn over what they gave the Americans, in particular “(i) records of the interviews conducted by Canadian officials with Mr. Khadr, or (ii) records of information given to U.S. authorities as a direct consequence of Canada’s having interviewed Mr. Khadr.”

The problem with approaching the issues raised in this way is that the Court manages to avoid dealing directly with the real issue that is at the heart of this case and which should have been central to its analysis. Namely, what is the duty of the Canadian government when a foreign state is treating a Canadian abroad in a manner that violates international law? Surely there must be a constitutional obligation on the Canadian government to assist its citizens in such circumstances. As a result, it is hard to understand why production was limited only to the material that CSIS had provided the Americans.

The duty to observe and protect s. 7 values, which must include a duty to assist citizens abroad whose fundamental human rights are in jeopardy, should undoubtedly extend to all information that Canadian Government officials might possess that is relevant to Mr. Khadr’s case, subject to any claims of national security privilege.

My preferred approach is to recognize that s. 7 and related rights are vested in individuals and define their individual relationships with the State. The State’s obligation to protect and nurture s.7 rights should require production where the failure to do so may impair the ability to make full answer and defence in any other country where the process is in violation of international law and basic human rights. So, if a person is detained in Syria, our government would have a constitutional duty to protect the citizen to ensure that the person is not tortured and can obtain a fair trial. If that cannot happen, our government should be required to do everything within its powers to secure a Canadian’s release. What I advocate is nothing more than a particular application of that principle.

If we accept that the Military Commission regime is violative of international law and basic human rights, then it follows that our government has a positive duty to assist. That means not only providing full disclosure but also taking positive steps to seek Khadr’s release from a detention that is illegal and contrary to international law. It should matter not what the degree of co-operation between the Canadian government and foreign government is. Rather, what should matter most is whether a citizen is about to be deprived of his s. 7 rights because a foreign legal system is out of step with international human rights norms to which Canada subscribes. It is in this sense that the Charter must have some minimal level of extra-judicial application.

Sadly, the Court did not engage that principle and focused on the Canadian government’s participation in a flawed regime as the principle that triggers an obligation on the part of our government to protect Mr. Khadr’s rights, rather than Mr. Khadr’s status as a Canadian citizen.

This is the most troubling aspect of the Supreme Court’s decision in Khadr: its willingness to rely on American jurisprudence to determine whether the occupation of Guantanamo Bay was illegal. Is this not nonsensical? The United States Supreme Court found in Hamdan v. Rumsfeld, 126. S. Ct 2749 (2006), that America’s procedural rules violated the Geneva Conventions. If Guantanamo Bay had been a Zimbabwean operation – Zimbabwe not being a signatory to the Geneva Conventions – are we to conclude that our Supreme Court would have found it legal? If Guantanamo had been a Chinese operation, are we expected to accept that China’s lack of enshrined habeas corpus rights would have made the events detailed in Rasul v. Bush, 542 U.S. 466 (2004), acceptable to Canadians?

Even if one considers these examples too hyperbolic, consider that neither Rasul v. Bush nor Hamdan v. Rumsfeld were particularly emphatic decisions by the U.S. Supreme Court; Rasul was a 5-3 decision and Hamdan a 6-3 decision. Given the highly politicized nature of the American judiciary, it may well be that only the continued good health of Justice Ginsburg and Justice Stevens (who significantly authored the majority decisions in both Rasul and Hamdan) in the last few years – both of advanced age, and both widely believed to be clinging to their seats to prevent dogmatic Republican appointees replacing them – prevented the decision turning the other way. If a slightly differently composed American Supreme Court had justified their federal government’s illegality in these cases, should we then expect our Supreme Court to toothlessly agree?

This line of thinking effectively conflates Canadian courts’ interpretation of international law with their American counterparts, and relies upon a diminished moral standard for Canadian action; the judgement of what is reasonable not by our own standard, but by the international equivalent of peer acceptance. (Indeed, the Court seems to recoil from this logic at para. 25, citing Canadian ratification of the Geneva Conventions and stating that “[i]t follows that participation in the Guantanamo Bay process which violates these international instruments would be contrary to Canada’s binding international obligations.”)

The Supreme Court follows its somewhat tepid determination of a violation of international law by further qualifying at para. 27 that violation of Canadian human rights obligations will typically require that assistance be tendered to a violative regime. Although the Supreme Court allows for the possibility that this not be the case, it fails to allow for how – and the obvious point to be made here is that deference of this sort – especially on an international level – amounts to tacit endorsement of that regime, or at the very least of that regime’s tactics, and in spirit if not letter thus a violation of Canada’s binding international obligations.

This distinction is especially important given the Court’s decision in para. 32 to restrict Canada’s disclosure obligation to information provided to U.S. authorities:

In this case, although Canada participated in the U.S. process by giving the product of its interviews with Mr. Khadr to U.S. authorities, it did not by virtue of that action step into the shoes of the U.S. prosecutors. The scope of the disclosure obligation in this context is defined by the nature of Canada’s participation in the foreign process. The crux of that participation was providing information to U.S. authorities in relation to a process which is contrary to Canada’s international human rights obligations. Thus, the scope of the disclosure obligation must be related to the information provided to U.S. authorities.

By taking this route, the Supreme Court is effectively washing Canada’s hands of the matter, all the more so when Khadr’s attorneys assert that only Canada can potentially deliver unto them required documents that the Supreme Court decided were not included within the bounds of disclosure. This is not a trifling matter; Khadr’s attorneys have asserted repeatedly (and produced evidence that would seemingly confirm) that the American government has doctored evidence against Khadr.

The level of deference shown by the Supreme Court to the American government and judiciary is disturbing. Where the Canadian government cannot be counted upon to defend the rights of Canadians abroad, it falls to the judiciary to force them to observe their Charter and international law obligations. Canada v. Khadr sets a standard that is simply too low; it demands nothing more than the bare minimum. We can do better.

To reach this finding, the judges had to override the principles of international law and comity of nations, which limit the application of Canadian law on Canadian officials working abroad in an effort to portray their acceptance of foreign law and procedures. In order to do so, the Supreme Court utilized the exception noted in R. v. Hape 2007 SCC 26. The idea in Hape is that “comity cannot be used to justify Canadian participation in activities of a foreign state or its agents that are contrary to Canada’s international obligations” [para 18].

In what can only be speculated as a calculated move, our Supreme Court utilized two U.S. Supreme Court decisions that proclaimed the detention and trial processes in Guantanamo Bay illegal and contrary to the Geneva Conventions (Rasul v. Bush, 542 U.S. 466 (2004), and Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006)). As such, the Canadian agents interviewing Mr. Khadr were found to be at the time involved in a process that was contrary to Canada’s international obligations. This analysis led the Court to apply the Charter and find a duty on Canada to disclose the evidence sought.

The result was positive to the particular questions asked by Mr. Khadr’s attorneys. However, the judges chose a uniquely minimalist approach that has been remarkable in cases that relate to “terrorism,” which by now, let’s all admit, means discussing the United States and its wars, disregard and contempt for the international law of war. Two particular observations point to the fact that our Supreme Court judges did not want to go there. First is the total reliance, without much explanation, on the decisions pronounced by the U.S. Supreme Court on the legality of the Guantanamo Bay detention and trial processes. Second is the intentional choice of one moment to indict Canada and its agents and that was only when Canada materially and unquestionably ‘participated’ with the American defunct process in Guantanamo.

In regards to the first point, it is worth mentioning that the ruling noted that “[i]ssues may arise about whether it is appropriate for a Canadian court to pronounce on the legality of the process at Guantanamo Bay under which Mr. Khadr was held at the time that Canadian officials participated in that process” [para 21]. However, the judges ruled they need not resolve those issues in this case. Instead, they referred to the American cases that are so apparently limited to the time of their release. The Canadian Supreme Court effectively closed the doors to any current investigation of the conditions of Mr. Khadr’s detention and trial. Any such inquiry would open up the door to asking the more urgent broad question: what are Canada’s obligations to Mr. Khadr? And what is the role of the Canadian Supreme Court in identifying and pursuing justice for Mr. Khadr?

The second point shows the general hesitation to outline (and consequently condemn) all of Canada’s role in Mr. Khadr’s case. The choice to condemn the Canadian activity only at the time of the interviews limits and obscures Canada’s role in Khadr’s ordeal. The narrative portrays the Canadian involvement as one marked by touch-down, when the agents landed in Guantanamo and conducted the interviews. Intelligence gathering and sharing, the kind that led to Maher Arar’s ordeal, and the trend to disregard civil liberties and legal procedure in the face of the faceless threat of terror, is declared a national security concern – and according to this judgment is to be left unscrutinized. This approach demonstrates a lack of interest or will to explore and judge the Canadian overall involvement with U.S. security agencies.

Without an investigation into the current detention and trial conditions of Mr. Khadr and a full account of Canada’s involvement, the main question remains unanswered as to what is Canada’s attitude towards someone in Mr. Khadr’s position. The Supreme Court had the opportunity to make larger connections between diminishing civil rights and the fight on “terror,” which necessarily requires discussing the United States and Canada’s relationship to American laws and processes. The Supreme Court could have acted like a moral compass that pushed for repatriation and opened the discussion for any other duties to be found for Mr. Khadr. Instead they decided to mitigate for the Canadian agents’ disregard to human rights by merely disclosing documents that would have been available for any defense counsel on Canadian soil anyway.