On January 29, 2010, the Supreme Court of Canada released its much-anticipated decision in Khadr v. Canada (Prime Minister), 2010 SCC 3. Though the Federal Court and the Federal Court of Appeal ordered the federal government to request Omar Khadr's repatriation as a remedy for breaching his section 7 Charter rights, the Supreme Court declined to go so far. Rather, the Court unanimously held that although Mr. Khadr's rights had been violated, it was for the federal executive, and not the courts, to decide how to best provide a remedy for that breach.

Background

In July 2002, Mr. Khadr was taken into custody by the United States armed forces operating in Afghanistan. The U.S. alleges that Mr. Khadr threw a grenade at U.S. troops, which ultimately killed an American soldier on detonation. Mr. Khadr was detained at the Bagram Air Base in Afghanistan. As Mr. Khadr was born in Canada and held Canadian citizenship, Canadian authorities requested consular access to Khadr. The U.S. declined the request, both at Bagram Air Base and at the Guantánamo Bay detention centre where Mr. Khadr was eventually transferred. At the time he was taken into U.S. custody, Mr. Khadr was 15-years old.

In 2003 and 2004, Canadian officials from the Canadian Security Intelligence Service (CSIS) and the Department of Foreign Affairs and International Trade (DFAIT) interviewed Mr. Khadr at Guantánamo Bay. Mr. Khadr did not have legal representation and did not have the assistance of Canadian consular officials. He had not been permitted to contact his family and still retained legal status as a minor. The interviews were being monitored and recorded by U.S. officials. CSIS and DFAIT intended to use the interviews to gain intelligence, and not for the purpose of gathering evidence to assist the U.S. in prosecuting Khadr. Nonetheless, the interviews were shared with U.S. officials and neither CSIS nor DFAIT placed any limits on the information's use.

The U.S. Supreme Court Weighs In

In the background, the U.S. Supreme Court was reviewing the Bush administration's decision to detain foreign combatants at Guantánamo Bay without access to habeas corpus and whether the procedures for prosecuting the detainees violated the Geneva Conventions. In Rasul v. Bush, 542 U.S. 466 (2004), the U.S. Supreme Court held that foreign detainees, including Mr. Khadr, could challenge the legality of their detention in U.S. courts. In Hamden v. Rumsfeld, 126 S. Ct. 2749 (2006), the U.S. Supreme Court held that the military commission established to prosecute the Guantánamo Bay detainees violated U.S. law and the Geneva Conventions.

Khadr's Canadian Legal Challenges

As a result of these decisions, the Supreme Court of Canada, in an earlier decision involving Mr. Khadr, concluded that the “regime providing for the detention and trial of Mr. Khadr at the time of the CSIS interviews constituted a clear violation of fundamental human rights protected by international law.” (Canada (A.G.) v. Khadr, 2008 SCC 28)

Following the Supreme Court of Canada's 2008 decision, Mr. Khadr was given access to records of the interviews conducted by CSIS and DFAIT. Under the Canada Evidence Act, Justice Mosley of the Federal Court reviewed the documents and concluded that Canadian officials knew that Mr. Khadr had been subject to harsh and, ultimately, illegal interrogation techniques during his detention.

The Present Application and Appeals

In August 2008, Mr. Khadr brought an application in the Federal Court seeking an order that the Canadian government request his repatriation. The application judge held that Mr. Khadr's right to liberty and security of the person under the Charter had been breached and ordered that Canada should request the U.S. to return Mr. Khadr to Canada as his remedy.

In a split decision, the Federal Court of Appeal upheld the application judge's decision. Justices Evans and Sharlow agreed that Mr. Khadr's rights had been violated and that an order requesting his repatriation was appropriate. Justice Nadon dissented, concluding that Mr. Khadr's right to be protected by Canada was sufficiently fulfilled and an order requesting his return was outside the Federal Court's jurisdiction.

The Canadian government appealed the Federal Court of Appeal's decision to the Supreme Court of Canada. The appeal was heard on an expedited basis in November 2009 and the decision was released on January 29, 2010.

The Supreme Court's Decision

The Supreme Court of Canada's unanimous decision comes to three conclusions. First, though the Charter does not apply to Canadians abroad, there is an exception if the Canadian government or other state actors participate in the foreign state's activities such as to violate Canada's international obligations or fundamental human rights norms. In this case, the Supreme Court had already ruled in 2008 that Canadian officials could be held liable for breaching Mr. Khadr's Charter rights by interrogating him in the face of an illegal detention.

Second, the CSIS and DFAIT interviews constituted a breach of Mr. Khadr's section 7 rights. The interviewers extracted statements from Mr. Khadr that could prove to be inculpatory in the U.S. proceedings against him and contributed to his continued detention by the U.S. As such, Canada is complicit in Mr. Khadr's deprivation of liberty and security of the person.

Further, Mr. Khadr's detention and Canada's participation in it are not in accordance with the principals of fundamental justice. Guantánamo Bay detainees were being held without the right to challenge their detention by way of habeas corpus. Mr. Khadr was 16-years old at the time and did not have access to his family or counsel. Most importantly, one of interviews was conducted after Mr. Khadr was subjected to three weeks' of scheduled sleep deprivation. In short, Mr. Khadr's rights were violated when Canadian officials violated reasonable expectations about the treatment of detained youth suspects in interrogating him and providing information from those interrogations to U.S. officials.

Finally, and perhaps most importantly, the Supreme Court held that the application judge's remedy that the federal government must request Mr. Khadr's repatriation was inconsistent with the framework of Canada's constitutional democracy and is not a judicial remedy within the powers of the courts. The federal government retains the prerogative power over foreign affairs, which includes making representations to foreign governments. As the court cannot assess the impact of any request to repatriate Mr. Khadr on Canada's foreign relations and the likelihood of the effectiveness of any such remedy is unknown, the prudent remedy is to declare that Mr. Khadr's rights have been violated and allow the government to decide how to remedy that breach.

Conclusions

The Khadr case demonstrates that Canada is not immune from the challenges confronting the U.S. and other governments in prosecuting the “war on terror”. However, the court's reasons demonstrate an attempt to state what it sees as the appropriate balance between Canadians' Charter rights, government's responsibility and the scope of the court's jurisdiction. Canada has a constitutional duty to ensure that its officials do not participate in activities in foreign jurisdictions that violate Canadians' rights and values. At the same time, this decision makes clear that it will be up to the Canadian government to decide how to rectify such breaches where the court is ill-equipped to consider the diplomatic steps and ramifications that a remedy may require.