Today the Supreme Court of Canada issued its decision in Prime Minister of Canada, et al. v. Omar Ahmed Khadr. The practical outcome is that, for now, the government does not have to ask for the return of Guantanamo detainee and alleged child soldier Omar Khadr. The decision turned on a procedural point about the authority of the court in governmental affairs: the court could not order the government to ask for Mr. Khadr’s return as such an order would interfere with foreign affairs, the exclusive territory of the executive branch of government.

The government may have won that procedural battle, but it appears to be losing the substantive war. The Government of Canada lost on several critical points, and may face further court direction if it does not take appropriate actions to remedy Canada’s violation of Mr. Khadr’s Charter rights. The Supreme Court found that Canadian officials violated Mr. Khadr’s rights and that the remedy of asking for Mr. Khadr’s repatriation is sufficiently connected to that violation.

Image courtesy of the CBC

Here’s a breakdown of what happened:

The Charter applies in this case

Generally, Canadians abroad are governed by the laws of the country hosting them, not by Canadian law. However, there are exceptions to this general rule. The Court sets these out in its judgment:

[14] As a general rule, Canadians abroad are bound by the law of the country in which they find themselves and cannot avail themselves of their rights under the Charter. International customary law and the principle of comity of nations generally prevent the Charter from applying to the actions of Canadian officials operating outside of Canada: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 48, per LeBel J., citing United States of America v. Dynar, [1997] 2 S.C.R. 461, at para. 123.  The jurisprudence leaves the door open to an exception in the case of Canadian participation in activities of a foreign state or its agents that are contrary to Canada’s international obligations or fundamental human rights norms:  Hape, at para. 52, per LeBel J.; Khadr 2008, at para. 18.

In its 2008 decision on Mr. Khadr, the Supreme Court stated that “the principles of international law and comity that might otherwise preclude application of the Charter to Canadian officials acting abroad do not apply to the assistance they gave to U.S. authorities at Guantanamo Bay.” The Court reiterated this reasoning in its latest decision:

[18] Though the process to which Mr. Khadr is subject has changed, his claim is based upon the same underlying series of events at Guantanamo Bay (the interviews and evidence-sharing of 2003 and 2004) that we considered in Khadr 2008. We are satisfied that the rationale in Khadr 2008 for applying the Charter to the actions of Canadian officials at Guantanamo Bay governs this case as well.

Canada violated Mr. Khadr’s Charter rights

Omar Khadr being interrogated at GTMO by two Canadian officials while a CIA agent supervises. This photo was released by Khadr’s lawyers. Photo: Wikimedia.

To establish that Canada had violated Mr. Khadr’s section 7 rights to liberty and security of the person, Mr. Khadr had to prove two things:

1. That Canada’s actions “contributed to his past and continuing deprivation of liberty” (para. 19); and
2. That the “deprivation is not in accordance with the principles of fundamental justice” (para. 22).

In addressing these two questions, the Court looked to the role Canada played in Mr. Khadr’s detention. It addressed the repeated interrogations by CSIS officers in February and September 2003, the use of the information collected in criminal proceedings against Mr. Khadr, and the fact that Canada knew that Mr. Khadr had been a part of the “frequent flyer program” (a systematic sleep deprivation technique designed to make detainees “more compliant and break down their resistance to interrogation” (para. 24, citing Jawad)) at the time of his CSIS interrogations. The Court also considered Mr. Khadr’s age and the fact that he was not provided access to counsel at the time of the CSIS interrogations.

The Court found that both conditions were met, and that Canada had violated the section 7 rights of Mr. Khadr:

[21] An applicant for a Charter remedy must prove a Charter violation on a balance of probabilities (R. v. Collins, [1987] 1 S.C.R. 265, at p. 277).  It is reasonable to infer from the uncontradicted evidence before us that the statements taken by Canadian officials are contributing to the continued detention of Mr. Khadr, thereby impacting his liberty and security interests. In the absence of any evidence to the contrary (or disclaimer  rebutting this inference), we conclude on the record before us that Canada’s active participation in what was at the time an illegal regime has contributed and continues to contribute to Mr. Khadr’s current detention, which is the subject of his current claim.  The causal connection demanded by Suresh between Canadian conduct and the deprivation of liberty and security of person is established.

…

[25] This conduct establishes 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.

Asking for Mr. Khadr’s return would be “appropriate and just”

When crafting Charter remedies, the judiciary has great discretion to come up with a remedy that addresses the unique circumstances of the Charter violation being addressed. While the remedy of an order to seek the return of an individual being held abroad is unusual, usual-ness is not the standard by which Charter remedies are judged. Remedies must be “appropriate and just”, responding to the violation in a way that “meaningfully vindicates the rights and freedoms of the claimants” (Doucet-Boudreau v. Nova Scotia at para. 55).

The Court considered whether there was a “sufficient connection ” between the breach of Mr. Khadr’s Charter rights and the remedy sought. The remedy sought is unusual, but so are the circumstances of Mr. Khadr’s ongoing detention. The Supreme Court found that the ongoing consequences of the Charter breach means that a request to have Mr. Khadr turned over to Canadian custody would potentially vindicate those rights:

In our view, the sufficiency of this connection is established by the continuing effect of these breaches into the present.  Mr. Khadr’s Charter rights were breached when Canadian officials contributed to his detention by virtue of their interrogations at Guantanamo Bay knowing Mr. Khadr was a youth, did not have access to legal counsel or habeas corpus at that time and, at the time of the interview in March 2004, had been subjected to improper treatment by the U.S. authorities.  As the information obtained by Canadian officials during the course of their interrogations may be used in the U.S. proceedings against Mr. Khadr, the effect of the breaches cannot be said to have been spent.  It continues to this day.  As discussed earlier, the material that Canadian officials gathered and turned over to the U.S. military authorities may form part of the case upon which he is currently being held.  The evidence before us suggests that the material produced was relevant and useful.  There has been no suggestion that it does not form part of the case against Mr. Khadr or that it will not be put forward at his ultimate trial. We therefore find that the breach of Mr. Khadr’s s. 7 Charter rights remains ongoing and that the remedy sought could potentially vindicate those rights. (para. 30)

Division of authority

Finally, the Court had to consider whether the order from the Federal Court stepped inappropriately into the territory of the executive branch of government, which has the prerogative in matters of foreign affairs. While courts may exercise oversight, the Supreme Court decided that in this case, the court must defer to the judgment of the executive branch:

[39] Our first concern is that the remedy ordered below gives too little weight to the constitutional responsibility of the executive to make decisions on matters of foreign affairs in the context of complex and ever-changing circumstances, taking into account Canada’s broader national interests. For the following reasons, we conclude that the appropriate remedy is to declare that, on the record before the Court, Canada infringed Mr. Khadr’s s. 7 rights, and to leave it to the government to decide how best to respond to this judgment in light of current information, its responsibility for foreign affairs, and in conformity with the Charter.

The Court stated it would exercise its oversight role with caution, giving the changing circumstances around Mr. Khadr’s detention and eventual trial and the court’s “incomplete picture of the range of considerations currently faced by the government in assessing Mr. Khadr’s request” (para. 44). However, the Court did not close the door completely:

The government must have flexibility in deciding how its duties under the power are to be discharged: see, e.g., Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at paras. 101-2. But it is for the courts to determine the legal and constitutional limits within which such decisions are to be taken. It follows that in the case of refusal by a government to abide by constitutional constraints, courts are empowered to make orders ensuring that the government’s foreign affairs prerogative is exercised in accordance with the constitution: United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283. (para. 37).

Image courtesy of the CBC

Conclusion

While it overturned the Federal Court’s order for the government to seek Mr. Khadr’s immediate return, the Supreme Court has not let the government off the hook for Canada’s violations of Mr. Khadr’s Charter rights. The Court has issued “a declaration advising the government of its opinion on the records before it which, in turn, will provide the legal framework for the executive to exercise its functions and to consider what actions to take in respect of Mr. Khadr, in conformity with the Charter” (para. 47). The government must do something to vindicate Mr. Khadr’s Charter rights, and the court has set out requesting his return as an option that would possibly do just that.