Counterpoint: SCC Should Allow the Crown’s Appeal in Khadr
As my colleague James Gotowiec rightly points out, the reasoning of the trial judge in Prime Minister et al v. Omar Khadr, 2009 FC 405, upheld by the majority of the Federal Court of Appeal, is weak and unconvincing. The ratio of the trial judgment can be described as follows: although Khadr is in US custody and Canada was in no way involved in his capture or detention, the fact that Canadian officials interviewed him and provided the information they obtained to US authorities while aware of the inhumane treatment Khadr suffered implicates the Canadian government in the violation of his s. 7 rights by a foreign government. From this implication arises Canada’s obligation—a constitutional duty—to request the repatriation of Omar Khadr from the United States.
Establishing a Causal Connection
For s.7 of the Charter to apply to a deprivation of liberty by a foreign government, sufficient causal connection must be demonstrated between the deprivation of the appellant’s rights and actions of Canadian officials (United States v. Burns,  1 S.C.R. 283 and Suresh v. Canada (Minister of Citizenship and Immigration),  1 S.C.R. 3).
Burns concerned the possibility of the death penalty being sought against the appellants upon extradition to the United States. The Supreme Court held that, in light of the threatened deprivation of life, the discretion granted to the Minister of Justice under the Extradition Act to extradite fugitives to treaty countries was limited by the application of s. 7 of the Charter. Similarly, in Suresh the SCC found that the Minister of Citizenship and Immigration could not order a deportation without a proper hearing balancing the risk of torture to the appellant against Canada’s security interests. The key take-away from the two cases is that:
the guarantee of fundamental justice applies even to deprivations of life, liberty or security effected by actors other than our government, if there is a sufficient causal connection between our government’s participation and the deprivation ultimately effected. … 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 at para. 54 [emphasis added]).
In Khadr, the involvement of Canadian officials does not constitute a sufficient causal connection contemplated in the case law. Canadian officials interrogated Mr. Khadr and handed over consequent information to US authorities while aware of his mistreatment and torture. However, Khadr’s mistreatment was not caused by his CSIS interview in 2004. Canada was not involved in his capture by a foreign government (United States) in a foreign territory (Afghanistan). Canada was not involved in—and indeed was not even aware of—his torture and inhumane treatment, which began in 2002, until 2004.
Interrogators or Incarcerators?
The trial judgment erroneously relies on the Supreme Court’s previous decision in Canada (Justice) v. Khadr,  2 S.C.R. 125 (hereafter referred to as Khadr 2008) which addresses the disclosure of documents related to Khadr’s interrogation by Canadian officials. The trial judge characterizes this interrogation to be tantamount to “the direct involvement of Canadian authorities in his mistreatment at Guantánamo Bay” (para. 47). In the words of the Federal Court of Appeal:
Justice O’Reilly focussed on specific conduct of Canadian officials, namely their interviewing Mr. Khadr at the prison at Guantanamo Bay for the purpose of obtaining information from him, and giving the fruits of those interviews to United States authorities without attempt to control their use of that information. That was potentially detrimental to Mr. Khadr’s liberty and personal security (FCA at para.35).
However, in Khadr 2008, the Supreme Court was focusing on the interrogation and the handing over of obtained information to US authorities. Canada was implicated in both the interview process and the torture (sleep deprivation) that had been conducted by US officials in possible contemplation of the Canadian interrogation. This does not mean, however, that Canada can be implicated in the whole of the detention and inhumane treatment carried out by US officials at Guantanamo Bay. As the Supreme Court notes:
Merely conducting interviews with a Canadian citizen held abroad under a violative process may not constitute participation in that process. Indeed, it may often be essential that Canadian officials interview citizens being held by violative regimes to provide assistance to them. Nor is it necessary to conclude that handing over the fruits of the interviews in this case to U.S. officials constituted a breach of Mr. Khadr’s s. 7 rights. It suffices to note that at the time Canada handed over the fruits of the interviews to U.S. officials, it was bound by the Charter, because at that point it became a participant in a process that violated Canada’s international obligations (at para.27).
The process being referred to by the SCC is the interrogation and retrieval of information from Khadr, not the detention itself. It remains to be shown whether the information provided by the Canadian officials to US authorities was the cause of his continued detention or mistreatment. If Khadr was going to be treated in a deprivitive and degrading manner regardless of the information passed on to the US, Canadian involvement cannot constitute a sufficient causal connection to his situation. To be sure, in Khadr 2008, Canada was implicated in the violative process related to the interviewing, not the prolonged incarceration of Khadr.
Khadr and Foreign Affairs
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.
Why shouldn’t the Supreme Court go further instead, and create a positive duty to repatriate citizens in all cases of forcible confinement and inhuman and degrading treatment? Some suggest that this is the course the SCC should take.
The problem with this reasoning is quantifying and prescribing what the Canadian government ought to do. Evidence suggests that the government has done everything short of requesting repatriation. This is noted in both the dissent and the majority decisions of the FCA. It is also recognized by the trial judge at paragraph 18 of his reasons: “It cannot fairly be said … that Canada abandoned Mr. Khadr entirely. Clearly, officials were concerned about his treatment and welfare and, beginning in 2005, checked on him regularly”. Nadon J.A.’s dissent focuses on this point, finding that even if Canada owed a s.7 duty to Khadr, it fulfilled that duty by making countless requests and demands from the United States through various diplomatic and other means short of repatriation.
How is such a duty to repatriate to be defined? Could such a duty be fulfilled by a simple request to repatriate? In that case, the Canadian government could simply discharge its moral responsibility to its citizens by writing a good faith 2-line diplomatic note to the foreign government. Perhaps the Canadian government should be required to make its “best reasonable effort to repatriate”? In the words of the Supreme Court of South Africa, this could involve “consular action, negotiation, mediation, judicial and arbitral proceedings, reprisals, retorsion, severance of diplomatic relations, [and] economic pressures” (Kaunda v. President of South Africa,  ZACC 5 at para. 27). Perhaps we could go one step further and require Canada to use all resources and avenues at its disposal, including the threat and use of force, to protect its citizens from abuse by foreign governments? These questions are simply meant to illustrate the complex foreign affairs problems that arise with each possible judicial prescription.
The issue in Khadr is not whether Canada ought to have a duty to repatriate citizens whose s.7 rights are being violated abroad, nor is it whether whether we, as citizens, would like our government to offer such protection. The issue is also not whether it is wrong, bad, or shameful that the Canadian government has not acted while all other Western prisoners have been repatriated out of Guantanamo Bay. Rather, the issue is whether there is any legal basis in the Charter through which the Judiciary can place such an obligation on the Executive. The reasoning presented at trial is unconvincing in this regard and there is a strong case to be made at the Supreme Court that the Executive does not have a constitutional duty to request Khadr’s repatriation from the United States.