Top court affirms Charter constrains Canadian officials’ conduct abroad Reasons: Canada (Prime Minister) v. Khadr, [2010] S.C.J. No. 3.

The Supreme Court’s condemnation of the Canadian government’s “ongoing breach” of Omar

Khadr’s constitutional rights will legally constrain Canadian officials from
collaborating in future rights abuses abroad, contend counsel who argued the
case at the top court.
By holding in clear and unequivocal terms that in
2003
and 2004 the government violated the Guantanamo Bay prisoner’s s. 7
Charter
right to life, liberty and security of the person in a manner that
is
contributing to his current detention and the ongoing breach of his
rights, last
month’s ruling in Prime Minister of Canada v. Khadr 2 “has many
broad
implications beyond this case,” said University of Toronto law
professor Sujit
Choudhry.
Choudhry suggested the principles of the
judgment will apply to
many situations where Canadian government and
military officials cooperate with
foreign officials abroad on matters of
national security, law enforcement and
defence.
“Khadr 2 says we clearly
can’t be violating fundamental
rights—that’s very important,” said Choudhry,
who represents the British
Columbia Civil Liberties Association, one of more
than a dozen legal groups who
intervened in support of Khadr’s appeal at the
high court.
Simon Potter of
Montreal’s McCarthy Tétrault said most
important is the court’s firm rejection
of the government’s argument that
courts may not interfere with the executive’s
exercise of the Crown
prerogative over foreign relations. “They were arguing
that within their
prerogative in foreign affairs they could do anything and the
courts would
have nothing to say about it,” said Potter, counsel for the
intervener
Lawyers Without Borders, the Barreau du Quebec, and Groupe d’étude en
droit
et libertés of Laval University’s Faculty of Law.
Potter said the court
has reaffirmed that when a government refuses to abide by constitutional
constraints when exercising its prerogative to conduct foreign relations,
the
court may order compliance. “For my clients, the... principle was that
the
executive branch never is on a ground on which it is immune from review
by the
judicial branch, and that principle has been resoundingly
protected.”
The
high court’s 9-0 per curiam judgment Jan. 29 affirms the
conclusion of the
Federal Court and Federal Court of Appeal that Canadian
officials contributed to
the Khadr’s present detention in a fundamentally
unjust manner when they
repeatedly interrogated the then-16-year-old youth
at Guantanamo Bay in 2003 and
2004.
“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,” the court said.
The judges went on to
note that the “relevant,
useful” and “potentially inculpatory” statements
elicited by Canadian
officials will likely form part of the prosecution’s case
at the U.S.
military tribunal in Guantanamo Bay. Canadian-born Khadr, whose late
father
had links to al-Qaeda, faces war crimes charges stemming from the death
of
an American soldier during a 2002 firefight in Afghanistan.
The Supreme
Court awarded Khadr his legal costs and issued him a declaration “that
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.”
However, the judges
denied Khadr’s request that the federal
government be ordered to seek his return
to Canadian soil—even though they
acknowledged such a remedy “could potentially
vindicate” his Charter
rights.
While the lower courts concluded such a remedy
under s. 24(1) of
the Charter was “appropriate and just” in the circumstances,
“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,” the Supreme Court said. “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 said it took this “prudent
course” given “the evidentiary uncertainties,
the limitations of the court’s
institutional competence, and the need to respect
the prerogative powers of
the executive.”
The refusal of injunctive relief
was “disappointing but
not surprising” given the tenor of the judges’
questioning during argument,
commented Nathan Whitling of Edmonton’s Parlee
McLaws, who represents Khadr,
along with Dennis Edney.
“We had told Omar this
was the most likely
result and he did not have his hopes up,” Whitling told The
Lawyers Weekly.
“During the appeal hearing the court was clearly concerned about
the
propriety of...intruding into the sphere of foreign relations because this
is not the traditional role of the court.”
Whitling did not rule out
going
back to court to seek injunctive or other relief. Khadr still has
pending a
$10-million Charter damages action against the
government.
Choudhry said the
judgment provides fodder for Khadr to
return to court, depending on the Harper
government’s next move.
“I think
[the judges] were a little bit too cautious”
but “the court said ‘at this
point’ we will not issue mandatory relief,” he
noted. “They did not say
‘never’ [to a mandamus] remedy, so I don’t think they
wimped out.”
Potter
said his clients are “very pleased” by the judgment, even
though they
supported the remedy below. “I don’t see it as an abdication,” he
explained.
“I don’t see it as a refusal to [ever] give the relief requested.
It’s
simply deferential on that point. The executive branch thought that there
had been no [constitutional] violation and that nothing had to be done. [The
court effectively said] ‘we are going to correct the executive branch on
that so
that they can decide what to do.’ I think that is a prudent way to
do it, but it
is not a judgment to the effect that the court can never make
such an
order.”
Less than a week after Khadr 2 was handed down, the
Harper government
announced it would not change its longstanding policy not
to seek Khadr’s
repatriation. At press time, the government had not ruled
out taking other steps
to vindicate Khadr’s Charter rights. Crown counsel
could not comment but others
have suggested that the government might ask
the U.S. to treat Khadr more
leniently in light of his age at the time of
the alleged offences, or request
that the information passed on by Canadians
not be used in the military
prosecution.
Counsel for the interveners
opined that the government cannot
simply do nothing in the wake of Khadr 2.
“I expect the government to do
something because the judgment clearly
demands that, and then there is going to
be a debate—whether a public debate
or a judicial debate—as to whether that’s
sufficient,” Potter
predicted.
Brian Greenspan of Toronto’s Greenspan
Humphrey, counsel for
the intervener Criminal Lawyers’ Association, said it is
tragic but “not a
big surprise” that the government refuses to ask the U.S. to
return Khadr,
notwithstanding the Supreme Court’s statement that such a move
could
potentially mitigate the ongoing breach of Mr. Khadr’s s. 7 Charter
rights.
Greenspan noted the interveners in the appeal urged the court to
grant Khadr’s requested remedy because of concern that “the reaction of the
government would be precisely the reaction which has taken place, and
therefore
unless some enforceable remedy was granted, then it was likely the
government
would continue to skirt its responsibility.”
Reasons: Canada
(Prime
Minister) v. Khadr, [2010] S.C.J. No. 3.