Khadr v Canada: The Long Winding Road to a Charter Remedy?

Over the summer, TheCourt.ca commented on Omar Khadr’s journey through Canada’s courts – from the Federal Court to the Supreme Court of Canada (“SCC”) and back again. His lawyers have attempted to assert his Charter rights consistently and unrelentingly, despite constant setbacks. Nevertheless, the Canadian government has successfully appealed multiple decisions so that Mr. Khadr has been unable to realize the Charter remedy that he is entitled to. This is a troubling legal saga and Chief Justice McLachlin has articulated the precise reason, stating: “a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach.”

In a recent turn of events, reports of plea deal negotiations suggest that Mr. Khadr will plead guilty to all charges, including murder, and may serve part of his sentence in Canada. In one of the earliest Khadr decisions, Khadr v Canada (Prime Minister), [2010] 1 FCR 34, Justice O’Reilly of the Federal Court of Canada ruled that the government had an obligation to protect Mr. Khadr and that Canada should “present a request to the United States for Mr. Khadr’s repatriation…as soon as practicable.”

That decision was appealed, and in Canada (Prime Minister) v Khadr, [2010] 1 SCR 44, the SCC found that Canada’s complicity in the illegal treatment of Khadr meant that his s. 7 Charter rights – his “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” – had been violated. (The evidence suggested that Canada knew Mr. Khadr (at the time a child soldier) was being subjected to interrogation techniques that qualify as torture. Despite this, Canadian intelligence officials subjected him to further questioning and then shared the information gained with US officials.)

The SCC allowed the appeal in part, ultimately refraining from demanding the government repatriate Khadr. The members of the court unanimously agreed that to uphold the Federal Court’s insistence that Canada request the repatriation of Mr. Khadr was an intrusion into the government’s royal prerogative over foreign relations. The government was left to fashion a remedy that balanced the interests of the Charter, the uncertainty surrounding Mr. Khadr, and its responsibility over foreign affairs.

Following the SCC decision, the government sent a diplomatic note to the US, asking that the information that Canada provided to US officials not be used in the prosecution of Mr. Khadr. In a related statement to the press it was also announced that Canada would continue not to seek his repatriation.

This remedy was predictably considered insufficient for Mr. Khadr’s counsel and again they went before the Federal Court in Khadr v Canada (Prime Minister), [2010] 4 FCR 36, requesting a judicial review of the government’s actions in what was likely an effort to compel Canada to act before the August 2010 start of Mr. Khadr’s trial by a United States military commission.

By then, it was July 2010 and the trial’s start date was approximately one month away. Deciding in favour of Mr. Khadr, Justice Zinn gave the government 7 days to advance a list of potential remedies. If possible, the Federal Court determined, a “curative remedy” would be ideal. This demanded that the government request that Mr. Khadr be returned to Canada. The Justice declared that he would only accept an “ameliorative” remedy once all “curative” remedy options had been exhausted.

Instead of complying with the Federal Court decision, the government decided to make an application to the Federal Court for a stay of the enforcement of Justice Zinn’s ruling. In Canada (Prime Minister) v Khadr, 2010 FCA 199, Chief Justice Blais employed a three-part test in deciding not to grant the stay.

The test for injunctive relief received SCC approval in RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311 [RJR-MacDonald]. In that case a tobacco company was denied reprieve from complying with an incoming regulation limiting tobacco advertisements until a ruling on its constitutionality. The test is as follows:

First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried.  Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused.  Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits….

According to Chief Justice Blais, determining the extent to which the judiciary could impede into the government’s conduct of foreign affairs was a “serious question to be tried….” The Chief Justice rejected Mr. Khadr’s assertion that the issue was merely the correctness of the discretionary Charter remedy advocated by Justice Zinn. Considering the SCC’s reluctance to order a specific remedy it appears that the Chief Justice acted within the boundaries of that decision on this point.

Next, the government argued that it would suffer “irreparable harm” if Justice Zinn’s order was to stand. Again, considering the issue of the intrusion into foreign affairs, it was reasonable to conclude that Justice Zinn’s order would upset the balance referred to by the SCC. This would be irreparable in the sense that the government could not undo the positive steps required for compliance with the decision.

As to the issue of which party would suffer greater harm, the Chief Justice concluded that the government’s interest in protecting the division of powers outweighed the uncertain outcome of Mr. Khadr’s situation. According to the Chief Justice, the RJR-MacDonald decision mandated that the onus of demonstrating irreparable harm to the public interest is less than for the private interest:

The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from the restraint of that action.

Finally, we have arrived at the most recent related decision of the Federal Court of Appeal, Canada (Prime Minister) v Khadr, 2010 FCA 245, where Associate Justice Stratas denied Mr. Khadr’s motion for an expedited hearing of the government’s appeal of the Justice Zinn ruling.

The Justice was quick to point out the constraints on his ability to grant the motion. Two previous requests by Mr. Khadr to the Federal Court of Appeal to expedite the proceedings were denied. According to the decision in Del Zotto v Canada (Ministry of Natural Resources), [1996] 2 CTC 22, there had to be “evidence of a significant new development…[an extraordinary] marked changed in circumstances,” in order for the appeal court to justify granting Mr. Khadr’s latest request. According to Justice Stratas, no such change in circumstances existed. Khadr’s American military tribunal looms large over all the Canadian proceedings, but it is difficult to argue that its commencement constitutes a “marked change in circumstances.”

Ultimately, this is a very complicated issue. The personal dynamic (Khadr as a Canadian citizen with Charter rights, torture, child soldier) demands government action. However, the boundaries that the judiciary must tread in relation to the government’s prerogative over foreign affairs is a context which cannot be ignored. Recognizing this, the SCC was careful to limit the intrusion into Canada’s foreign policy by the judiciary and the related appeal court decisions have abided by that guidance.

Yet, if media reports turn out to be true, the repatriation of Mr. Khadr to serve his sentence in Canada could be considered the “curative” remedy to the Charter breach last recommended by Justice Zinn of the Federal Court. Nevertheless, the government has still reinforced its prerogative power over foreign affairs.