Omar Khadr: Will Harper’s Appeal Succeed?

On April 23, Justice O’Reilly of the Federal Court in Vancouver ordered the federal government to request the repatriation of Omar Khadr in Khadr v. Prime Minister of Canada 2009 FC 405. Following an earlier decision from the Supreme Court in Canada v. Khadr 2008 SCC 28 O’Reilly found that Canadian officials had been complicit in the detention, interrogation and mistreatment of Mr. Khadr, and thus, violated his rights under s.7 of the Charter. Presently, the federal government is still pondering and appeal of the decision, and in this post I look at some of the areas of O’Reilly’s judgment that government officials might think to ground an appeal. While the decision appears weak in the way it addresses the principles of fundamental justice under s.7, with the mounting political pressure to close Guantanamo and the top court’s increasingly interventionist approach to foreign affairs matters, the federal government faces an uphill battle.


Omar Khadr’s saga should be familiar to just about any reasonably attentive Canadian. The very mention of the name is likely to stir controversy and incite often-problematic comments on news websites and blogs nationwide. In short, though, Mr. Khadr was apprehended by American forces in Afghanistan and charged with murder in 2002 following a firefight that resulted in the death of an American solider. He was held in Bagram Air Base in Afghanistan before being transferred to the American military base in Guantanamo Bay, Cuba. He has been held there now for over 6 years without a trial. He was 15 years old at the time of his capture.

Mr. Khadr alleges that during his detention, he was subject to a variety of forms of mistreatment including the use of stress positions, sleep deprivation, solitary confinement, the denial of medical treatment and physical violence. His allegations are consistent with what has generally been observed at Guantanamo Bay. In 2006 a UN report found that the conditions at Guantanamo Bay represented violations of a host of international legal instruments including the Convention Against Torture. Importantly, Justice O’Reilly found that Mr. Khadr was placed on the “frequent flier program” – a process in which he was denied uninterrupted sleep for 3 weeks – before being interrogated by Canadian officials in order to make him “more amenable and willing to talk.” The Canadian officials were aware of this procedure, and thus became complicit in Mr. Khadr’s mistreatment.

S.7 of the Charter and the Principles of Fundamental Justice

Following directly from the 2008 Supreme Court Khadr decision, Justice O’Reilly found that the Canadian government was implicated in the violation of Mr. Khadr’s s. 7 liberty interests by virtue of “Canada’s participation in a foreign process that is contrary to Canada’s international human rights obligations.” The central issue, then, was whether the refusal to demand Mr. Khadr’s repatriation had been done in a manner consistent with the principles of fundamental justice.

The principle of fundamental that Justice O’Reilly landed on raises some initial confusion. He states, “a duty to protect persons in Mr. Khadr’s circumstances [is] a principle of fundamental justice.” This “duty to protect,” as he describes it later, leads to the conclusion that, “the principles of fundamental justice obliged Canada to protect Mr. Khadr by taking appropriate steps to ensure that his treatment accorded with international human rights norms.”

The phrase, “persons in Mr. Khadr’s circumstances,” seems an unlikely candidate for a principle of fundamental justice, referring as it does to the plight of a single individual. Justice O’Reilly does not tell us what the salient aspects of Mr. Khadr’s circumstances are for the purposes of the principle, but a fulsome reading of the judgment provides some clues. Based on his lengthy discussion of international law, it would appear the principle of fundamental justice at play could be rephrased somewhat awkwardly as ‘a duty to protect Canadian citizens detained abroad in violation of international human rights norms, and in particular when:
• The detainee is a child
• The detainee has been subject to torture or other mistreatment
• The detainee has been denied due process
• The detainee has been denied access to consular assistance
• The detainee is a child solider

However the principle is phrased, this portion of Justice O’Reilly’ judgment is unusual. If the government does decide to appeal the decision, the Federal Court of Appeal will surely take issue with his formulation of the principle of fundamental justice. The federal government will surely question how this formulation meets the third requirement from R. v. Malmo-Levine 2003 SCC 74, namely that it be stated with sufficient precision to yield a manageable standard for appellate review. Indeed, as stated, the principle raises a host of additional questions: does it apply only to children? Does it only apply in the presence of torture? If O’Reilly’s decisions cannot provide answers, it is hard to see how it could stand up to Appellate review.

Judicial Interference in Foreign Affairs Decisions

Another remarkable aspect of the decision is that it is the first time the court has ordered that the government take steps to request the repatriation of one if its citizens. Typically foreign affairs maters such as extradition and repatriation are left in the hands of the executive, and courts have been reluctant to interfere: “In recognition of the various and complex considerations which necessarily enter into the extradition process, this Court has developed a more cautious approach in the review of executive decisions in the extradition area, holding that judicial scrutiny should not be over-exacting.” (Kindler v. Canada 1991 CanLII 78).

However, since the 2001 decision in United States v. Burns 2001 SCC 7, it appears that this ‘hands-off’ attitude towards such matters has changed in light of concerns about protecting the Charter rights of Canadian citizens abroad. In that decision, the Supreme Court held that in s. 7 of the Charter requires the foreign minister to request assurances of other countries that the death penalty will not be used on persons extradited from Canada. In reaching its decision, the SCC was moved by two notable factors that may equally apply in Mr. Khadr’s case. The first was the horrors of the ‘death row’ phenomenon: detainees living for many years while various appeal procedures take place, all the while under the spectre of death. The inevitable psychological trauma that results from detention in these conditions helped push the SCC towards its eventual decision. The second factor at play was the fact that the death penalty had been under sustained attack from within the United States itself. One of the traditional reasons the court has stayed out of extradition matters was because of fears of upsetting international relations But because the death penalty has been increasingly viewed with skepticism from the very country requesting extradition, there was virtually no risk of disturbing the relationship between the two countries by requesting assurances that he death penalty would not be used. In the result, the SCC had little difficulty stepping into what had traditionally be a ‘no-go zone’ for the courts.

Mr. Khadr’s case represents almost a perfect storm of conditions justifying judicial interference in the policy decisions of the executive. The deplorable conditions endured by detainees at Bagram Airbase and Guantanamo Bay at the hands of the US authorities have been widely documented and subject to international criticism. The place Amnesty International has called “the gulag of our times” is, like the death penalty, increasingly regarded as an affront to human rights and decency. But perhaps more importantly, the conditions of Mr. Khadr’s detention and prosecution have come under intense fire from within the United States. President Obama has ordered the shutdown of Guantanamo Bay and frozen Khadr’s prosecution pending review. In the meantime, calls from within the US Senate to prosecute those responsible for the use of torture in Guantanamo Bay have gained momentum. In these circumstances, Prime Minister Harper’s decision to refuse repatriation will be extremely hard to justify. O’Reilly’s unusual s.7 analysis notwithstanding, a successful government appeal may not be the cakewalk that Mr. Harper would like.

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