Khadr v. Canada (Prime Minister) (2010): From the Federal Court to the SCC and Back Again

As most readers are likely aware, Omar Khadr has been held at the detention camp at Guantanamo Bay as an enemy combatant since 2002. His trial before a US military commission is scheduled for August 10 of this year. He is charged with five offences: murder in the violation of the law of war, attempted murder in the violation of the law of war, conspiracy, providing material support for terrorism and spying.

Background and Facts

During the earlier years of his detention at Guantanamo, Khadr was interviewed by agents from the Canadian Security Intelligence Services (CSIS) and the Foreign Intelligence Division of Foreign Affairs and International Trade (DFAIT). A report taken from one particular interview noted that a DFAIT official interviewed Khadr even though, as the agent was aware, Khadr had been subjected to sleep deprivation prior to the interview. Sleep deprivation is a recognized form of torture and illegal under established law.

The information obtained from those interviews was shared with the US. According to the SCC in Canada (Prime Minister) v. Khadr, 2010 SCC 3, this conduct established:

Canadian participation in state conduct that violates the principles of fundamental justice. Interrogation of a youth, to elicit statements about the most serious criminal charges while detained in these conditions and without access to counsel, and while knowing that the fruits of the interrogations would be shared with the U.S. prosecutors, offends the most basic Canadian standards about the treatment of detained youth suspects.

As a result of his treatment, and Canada’s complicity, Khadr claimed a violation of his s. 7 Charter rights. Section 7 states:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The Federal Court agreed, and in Khadr v. Canada (Prime Minister), 2009 FC 405, it ordered that the Canadian government remedy the Charter violation by requesting that the US “return Mr. Khadr to Canada as soon as practicable.” Later, in Khadr v. Canada (Prime Minister), 2009 FCA 246, the Federal Court of Appeal upheld the lower court’s decision and dismissed the Crown’s argument that ordering the repatriation of Khadr was a “serious intrusion into the Crown’s responsibility for the conduct of Canada’s foreign affairs…”

Following the Court of Appeal ruling, the SCC accepted that Khadr’s s. 7 rights had been violated but deferred to the government on an appropriate remedy. According to the SCC:

through the conduct of Canadian officials in the course of interrogations in 2003-2004, as established on the evidence before us, Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person guaranteed by s. 7 of the Charter, contrary to the principles of fundamental justice.

Yet, the SCC determined, the repatriation order was not “appropriate and just in the circumstances.” The government was ordered to craft an appropriate remedy “in conformity with the Charter.” In response, Canada sent a request (a diplomatic note) to the US asking that it not use any of the information provided by Canada in the prosecution of Khadr. Also, through statements to the press, the government announced that it would continue to resist Khadr’s repatriation.

Back to the Federal Court

In the present case, before Justice Zinn of the Federal Court of Canada in Khadr v. Canada, 2010 FC 715, Khadr argued that the aforementioned statements to the press were representative of a decision subject to judicial review. As well, the sending of a diplomatic note requesting that the US not use the information gathered from the interviews was a decision in response to the SCC ruling that the government craft an appropriate remedy. Both, Khadr argued, should have been made in accordance with the principles of “procedural fairness and natural justice.” Simply put, Khadr’s lawyers should have been given the opportunity to participate in the decision making process. For instance, they should have been provided prior notice and been given the opportunity to put forth written submissions outlining their objections and wishes.

Accordingly, the Federal Court was tasked with answering the following:

1. Was the press release announcing that the government would continue to resist repatriating Khadr a decision subject to judicial review?
2. Was the decision to ask the US not to use the information gathered by Canadian officials (the diplomatic note) subject to judicial review?
3. Did the government have an obligation to provide procedural fairness and natural justice to Khadr when responding to the SCC’s order to craft a remedy?
4. Did Khadr receive procedural fairness and natural justice?
5. If he did not receive procedural fairness and natural justice, what order should the Federal Court impose?

The Federal Court considered whether the public statements were evidence of a decision to continue resisting repatriation. Those statements were made shortly after the SCC decision and in response to press questions regarding whether the government was shifting its position in light of the ruling. The government argued that the statements to the press were not reflective of decisions it had made following the SCC finding. The Federal Court disagreed, ruling that the statements demonstrated a decision by the government to continue to not repatriate Khadr.

The government also claimed that it was within its executive power to decide unilaterally to not repatriate Khadr and that Charter considerations were not warranted. This was a curious argument considering that the SCC had ruled that a Charter violation occurred and that the government had to craft a remedy “in conformity with the Charter.” To argue that the executive did not have to take into account Charter considerations, once a remedial response was ordered, was premised on the exercise of the royal prerogative.

Clearly, this was an executive decision and within the scope of foreign affairs. However, it was ordered to remedy a breach of an individual’s Charter rights. Those special circumstances logically warrant an intrusion into executive power. Not surprisingly, the Federal Court rejected the government’s claim that its decision-making regarding a remedy was beyond the scope of the Charter and therefore not subject to judicial review. To rule otherwise would have set a dangerous precedent regarding individual rights, executive power, and the Charter.

Ultimately, Justice Zinn ruled that “Mr. Khadr was entitled to receive procedural fairness and natural justice from the executive as it reached its decision as to the Charter remedy it would provide.” Accordingly:

the executive had a duty to inform Mr. Khadr of that decision, the remedy it was considering, and the action it would be taking. It also had a duty to give Mr. Khadr an opportunity to make written submissions as to remedial action(s) that would be appropriate before it unilaterally imposed its purported remedy.

The Justice recognized that the diplomatic note attempted to “ameliorate” the breach. But, the note would only be sufficient if there was no possible “cure.” In other words, the government could only rely on an ameliorative remedy if it exhausted all possible curative remedies. In this case, a potential “cure” is to request that the US return Khadr to Canada. Hence, if the government requested the US to return Khadr, and the US did not comply, only then is it likely that a ameliorative remedy would alleviate the Charter breach.

In the end, the Federal Court gave the government “an opportunity to explore effective remedies” and to put forth at least one “potential curative” remedy within 7 days of the judgement. Khadr then has to respond within 7 days from receiving the government’s response as to suggested remedies. Notably, Justice Zinn stated: “I retain jurisdiction to impose a remedy if, after the process described herein, Canada has not implemented an effective remedy within a reasonably practicable period of time…”

Conclusion

Despite the unique circumstances surrounding Khadr, the rule of law should be considered paramount. Mr. Khadr has been tortured (contrary to trite law), was a child soldier, is a Canadian citizen, and has been denied due process.

Chief Justice McLachlin once stated: “a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach.” In the present case, an ameliorative remedy was essentially ruled inconsequential under the circumstances. Ultimately, a breach of a Charter right must be remedied, or attempted to be remedied, in a form that recognizes the importance of that right.